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~ IN THE COURT OF COMMON PLEAS :
. .
. OF CUMBERLAND COUNTY .
. .
. ~ .
. STATE OF ~_ PENNA. .
. .
. .
. QRIUf H. NBIDI,G .
. N ().9~::.()~~4. ............. .
. Vl"',lIS .
* .
* LARRY O. NEIDIG .
! !
* .
* DECREE IN ·
*\ .
. DIVORCE :
: ANDNow,....A~(;I..'.Q........... 19.~~.... it is ordered and .
,r .
. decreed that ............... .Il.~~~"..f!, . ~~w~~. . . . .. .. . .. . . " plaintiff, .
. and . . . . . . . .. . . . . . . . . .. . .. . . . . . LAR.~Y: . 0.. .~I!l~pIG . . . . . . . . .. . '. defendant. .
: are divorced from the bonds of matrimony. .
. The court retains jurisdiction of the following claims which have :
* b.en raised of record in this action for which a final order has not yet .
* been .nt.red; .
'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . none i :.
".,...,.".......,..,.,................... I :
. ................................. I~
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URn H. ...IDIG IN THE COURT OF COMMON PLEAS OF
I
PLAINTIFF . CUMBERLAND COUNTY, PENNSYLVANIA
.
: 94 - 6054
v. .
.
.
LARRY O. ...J:DIG .
: CIVIL ACTION - LAW
DEFENDANT : IN DIVORCE
PRAECIPE TO TRANSMIT RECORD
TO THE PROTHONOTARY:
Transmit the record, together with the following information,
to the Court for entry of a Divorce Decree:
1. GROUNDS FOR DIVORCE: Irretrievable breakdown under Section
(x) 3301(c) OR ( ) 3301(d)(1) of the Divorce Code.
(Check one)
2. DATE AND MANNER of service of the Complaint:
By Certified Mail, Return Receipt received. Mailed to Larry O.
Neidi9 of 1916 FiSher Road. Mechanicsbura. PA 17055 on 10/22/94
3. COMPLETE EITHER PARAGRAPH (a) or (b)):
(a) Date of execution of the Affidavit of Consent required
by Section 3301(c) of the Divorce Code:
By PlaintH f
4/2/96 _; by Defendant
4/2/96
(b) (1)
Date of execution of the Plaintiff's Affidavit
required by Section 33011d) of the Divorce Code:
(11) Date of service of the Plaintiff's Affidavit
upon the Defendant:
4. RELATED CLAIMS PENDING:
5. DATE AND MANNER OF SERVICE Of THE NOTICE Of INTENTION TO
fILE PRAECIPE TO TRANSMIT RECORD, a copy of which is
attached, if the Decree is to be entered under Section
3J01(d) (1) (i) of the Divorce Code:
WAIVER Of NOTICE WAS SIGNED ON
none
-
..J JAJU: ". SAC
Attorney 1.0. No. 18727
352 South Sporting Hill Road
Mechanicsburg, PA 17055
(717) 737-2033
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DRBN H. NBIDIG . IN THE COURT OF COMMON PLEAS
.
PLAIII'I'IrP . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
vs. . 94 - CIVIL ACTION
.
LARRY O. NEIDIG
DEPBNDANT . IN DIVORCE
.
COMPLAINT IN DIVORCIl
COUNT I
AND ROW, comes the PLAINTIFF, by Attorney JAMES M. BACH, and
avers as follows:
1. Plaintiff is KAREN H. NEIDIG
currently resides at 105 NORTH ST.
, who
JOHNS ROAD, CAMP HILL, PA 17011
2. Defendant is
currently resides
I,ARRY O. NEIDIG , who
at 1916 FISHER ROAD, MECHANICSBURG, PA 17055
3. Plaintiff and Defendant have been bona fide residents in
the Commonwealth for at least six months immediately previous
to the filing of this Complaint.
4. The Plaintiff and Defendant were married on AUGUST 22, 1975
5. There have been no prior actions of divorce or annulment
between the parties.
6. The marriage is irretrievably broken.
7. Plaintiff has been advised of the availability of counseling
and also the Plaintiff may have the right to request that
the Court require the ~arties to participate 1n counseling,
and after being so advised, Plaintiff does not desire
counseling.
.
,
COUNT II
e. The averments of paragraphs 1 through 7 herein are hereby
incorporated by reference thereto.
t. The parties have acquired property during this marriage
but have not been able to agree on its equitable
distribution.
10. Plaintiff requests thie Court to preserve Plaintiff's
right to have all marital property of the parties equitably
distributed.
COUNT III
11. The averments of Paragraphs 1 through 10 herein, ar~ hereby
incorporated by reference thereto.
12. Plaintiff requests reasonable support for adequate
maintenance.
13. Plaintiff requests this Court to preserve its rights to
seek reasonable temporary alimony and additional sums as
may become necessary from time to time hereafter, until
final hearing and permanent alimony thereafter.
COUNT IV
14. The averments of Paragraphs 1 through 13 herein are hereby
incorporated by reference thereto.
15. Plaintiff has employed legal counsel, but is unable to
pay the necessary and reasonable attorney fees for said
counsel, and is unable to bo sustained during the course
of this litigation.
WBBRIroaa, Plaintiff prays your Honorable Court to:
(a) Enter a Decree in Divorce, divorcing Plaintiff from the
bonds of matrimony theretofore existing between Plaintiff
and Defendant.
(b) Order equitable distribution of marital property.
(c) Award alimony as the Court deems just and reasonable.
(d) Order payment of alimony pendente lite, counsel fees,
costs of experts, appraiser, and other expenses as the
Court deems just and reasonable.
(e) Order such other relief as the Court deem. ju.t and
reasonable.
DID R. DIDIO
I IN THB COURT OF COMMON PLIAS
Plaintiff I CUMBBRLAND COUNTY, PBNNSYLVANIA
I
I 6054 CIVIL
VI. I 94 -
I
LAIRY O. .8IDIG .
.
Defendant I CIVIL ACTION - LAW
IN DIVORCE
CERTIFICATE OF SBRVICI BY HAIL
I, iAMBS II BACH, Attorney-at-Law, hereby certify that I have
.ai ed to the below lilted individual, a copy of the foregoing
COMPLAINT & NOTICE TO UEFEND AND CLAIM RIGHTS
by placing a copy of lame in
prepaid, on the 21 at day of
addrelled al folloWI:
the United Statea Hail, pOltag.
October ,1994, and
MR. LARRY O. NEIDIG
1916 FISHER ROAD
MECHANICSBURG. PA 17055
..
.'
Date
10/25/94
BYl
."v-o ~
II. BACH
rney 1.0. No. 10121
3S2 South Sporting nill Road
Hechanioaburg, PA 110~5 .tj/-
111-131-2033 /}tI_. '
Attorney for the ,j'~'~
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lARa B. DIDIG
I IN THE COURT OF COMMON PLEAS OF
PLAINTIFF I CUMBERLAND COUNTY, PENNSYLVANIA
.
.
vs. . 94 - 6054 CIVIL TERM
.
LARRY 0,. .
NBIDIG .
.
.
DE.'ENDANT . IN DIVORCE
.
IfAIVIlR or NO'l'ICB or INTBN'l'ION '1'0 REQUBST
Blft'IlY or A DIVORCB DBCRU UNDIR
53301 c:2) or fiB DIVORCB CODB
1. I consent to the entry of a final decree of divorce without
noUce.
2. I understand that I may lose rights concerning alimony,
divieion of property, lawyer's fees or expenses if I do
not claim them before a divorce is granted.
3. I understand that I will not be divorced until a divorce
decree is entered by the Court and that a copy of the decree
will be sent to me immediately after it is filed with the
Prothonotary.
I verify that the statements made in this affidavit are true
and correct. I understand that fals~ statements herein are
made subject to the penalties of. 18 Pa.C.S. ~4904 relating to
unsworn falsification to authorities.
~
4/2/96.
DATE
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KAlln H. DIDIG IN TilE COURT OF COMMON PLEAS
PLAIR'l'Irr . CUMBERLAND COUNTY, PENNSYLVANIA
.
vs. I
. 94 - 6054 CIVIL
LARRY O. NBIDIG .
.
.
DBPBRDAN'l' IN DIVORCE
AFfIDAVIT or CONSBNT
1. A Complaint in Divorce under Section 3301(c) of the Divorce
Code was filed. on October 20, 1994.
2. The marriage of the Plaintiff and Defendant is irretrievably
broken and ninety days have elapsed from the date of the
filing of the Complaint.
3. I consent to the entry of a final Decree in Divorce.
4. I understand that, if a claim for alimony, alimony pendente
lite, marital property, counsel fees or expenses has
not been filed with tho Court before the entry of a final
Decree in Divorce, the right to claim any of those will
be lost.
I verify that the statements made in this Affidavit are true
and correct. I understand that false statements herein are
made subject to the penalties of 18 PA. C.S. 4904, relating
to unsworn falsification to authorities.
Date
4/2/96
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!CATHY A. MORROW
ATnlIlNfV AT LAW
217 S. (A_USII SUllY
'.0. lOX 250
NIW .Lao::.:I... fA 17061
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PROPIRTY SETTLIMENT AND CUSTODY AGRIIMINT
~ J IA./
This Agreement ie ~ade by and between KAREN NEIDIG~ at
Cumberland County, Pennsylvania, ("IHte") and LARRY ~~tAG~ at
Cumberland County, Pennsylvani~, ("Husband"), the
day of ~...~ ' 1992,
!tlTI!ESSETIl
WHEREAS, the parties hereto are husband and wife, having
been married on August 22, 1975 in Mechanicsburg, Cumberland
County, Pennsylvania: and
WHEREAS, Husband and Wife are parents of Kevin S. Neidig~~
born on January 12, 1976 and Kristina L. Neidig~ born on May -
30, 1979: and ~
NHEREAS, certain unhappy differences, disputes,
misunderstandings and difficulties have arisen between the
parties and the parties nave decided that their marriage is
irretrievably broken, that it is their intention to live
separate and apart for the rest of their natural lives, that
they are desirous of settling fully and finally their
respective financial and property rights and obligations as
between each ot.her including, without limitation by
specification:
1. The settling of all matters between them relating to
tho ownership of real and per'9onal property including property
heretofore or subsequently acquired by either party;
2. The settling of all disputes, rights and/or interests
between them arising out of or by reason of their marriage
including but not 1 imi ted to the past, present and future
support, alimony, counsel fees, cost or maintenance of Wife by
tlusband or of lIusband by Wlfe;
3. The settling of ,,11 ,natters between them relating to
the past, present and future support and/or ma Intenance of the
Children:
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4. The h1plerllentlltlon at cUl'ltody and/or visitation
arrangements for the minor chlldron of the parties: and
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5, In general, the settling of any and all actual and
po.sible claims by each party against the other or against
their respective estates,
NOW THEREFORE, in consideration of the premises and of
the mutual promises, covenants and uncertakings set forth in
the Agreement and for other good and valuable consideration,
the receipt an~ adequacy of which is hereby acknowledged by
each of the parties hereto, Wife and Husband, each intending
to be legally bound hereby, covenant and agrees as follows:
1, MYjce of Coullsltl. The provisions of this Agreement
and their legal effect have been fully explained to the Wife
by Kathy A, Morrow, Esquire, ~f New Bloomfield, PA, Husband
is not represented by counsel but has been advised to retain
counsel, The parties acknowledge that each has fully
disclosed his or her respective financial sltuations to the
other including his or her property, estate, assets,
liabilities, income and expenses, that each is familiar with
and fully understands the facts, including the property,
assets, earnings and income of the other, and that each has
been fully informed as to his or her legal rights and
obligations, Each of the parties acknowledges and agrees,
that, after having received such advise and with such
knowledge, this Agreement is, in the circumstances, fair,
reasonable and equitable, that it is being entered into
freely, voluntarily, and in good faith and that the execution
of this Agreement is not the result of any duress, undue
influence, coercion, collusion and/or improper or illegal
agreement, The parties further acknowledge that they have each
made to the other a full and complete disclosure of their
respective assets, estate, liabilities, and sources of income
and that they waive any specific enumeration thereof for the
purposes of this Agreement.
2, Joint Assets.
a. The parties agr~e that t.he only i'l!isets which they
own in joint name have been divided into two (2) equal shares
of approximately equal value determined by reference to the
fair market value of such property.
b. Wife and lIusband agree that the fo1'egoing
property dispositions constitute an equitable distribution of
all of their property, pursuant to Section 401 of the Divorce
code, 2] Pa, Cons. state. sec. 401. Wife and Husband hereby
waive any right to division of their property except liS
provided for in this Agreement.
J, Legal r~. Wife sha 11 be responsible for her legal
feell incurred if a Ino-fOlult" divorce is filed by Wire and not
contested by Ilusband and l:lIsband shall be resp<>nsible for his
legal fees,
..
t II.. MA~CARENAS. Alfreda . Cu. NQ,
n IDlnlOl II' ICHOWWJ
SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITV CLAIMS
(Continuation Sheel)
I IJ / I I'
CRIDITOII'S NAMI: AND DATI: CL.\IM WM JNCURRI:D .\MOUNT
r.wLINO ADDIIISI AND CONIIOIIlATIQN rOR CLAIM. or
INCLUOtNO ZIP COOl: IF CLAIM II lU1llc:T TO CLNM
8 IIT.()r~ 0 STATE
/
ACCOUNT NO. /
10-0609000051 /
York Water Company ,/
130 E, Market Street .
York, PA 17405 / 6/93 $92.00
/
/
ACCOUNT NO. /
6187052 .
I
Seidle Memorial Hospita /
120 S, Filbert Street l./
Mechanic.burg, PA 17055 / 11/92 $100.72
/
/
ACCOUNT NO. I
SMnnaot4.nQd
/
A,Z, Ritzman
P,Q. Box 655
Camp Hill , PA 170"1-065 11 /92 $13,00
ACCOUNT NO.
--2.l.JA..1 ~~ 't.4n
GTE North
Indianapolis, IN 46207- 110 7/93 $59.00
- C'onllnw.llon In"u IlIuh.4
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fn,po1110111 IIJO tin .s~1""""1')' o( .'''h''''''/'fI
rOAM u. SCtII:DULI: r . CJU:DITORS HOLDINC UNSECURED NONPRJORITV CLAIMS
I....
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4. Mutual Releases. Except, and only except, for all
right., agreements and obligations of whatsoever nature
arising under or which may arise under this Agreement or for
the breach of any part of this Agreement, Wife and Husband
each do hereby mutually remise, release, quitclaim and forever
discharge the other and the estate of the other, for all time
to come, and for all purposes whatsoever, of and from any and
all rights, title and interest, or claim in or against the
property (including income, and gain from property hereafter
accruing) of the other or against the estate of the other, of
whatever nature and wheresoever situate, which he or she now
has or at any timp hereafter may have against the other, the
e.tate of the other or any part thereof, whether arising (a)
out of any former acts, contracts, engagements or liabilitiee
of such other, (b) by way of dower or courte.y or claim. in
the 11ature of dower or courtesy or widow'. right. (c) as
family exemption or similar allowance, or (d) under the
intestate laws, the right to take against the spouse's will,
the right to treat a lifetime conveyance by the other as
testamentary, or all other rights of a surviving spouse to
participate in a deceased spouse's estate, whether arising
under the law of (i) Pennsylvania, (il) any other State,
Commonwealth or territory of the United states, or (iii) any
other country. Except, and only except for all rights,
agreements and obligations of whatsoever nature arising under
or which may arise under this Agreement or for the breach of
any part of this Agreement, the parties agree that this
Agreement shall be and constitute a full and final resolution
of any and all claims which each of the parties may have
against the other for equitable di9tribution of property,
alimony, counsel fees and expenses, alimony pendente lite or
any other claim pursuant to the Pennsylvania Divorce Codo or
the divorce laws of any other jurisdiction, The parties
further release and wa i ve any rights which ei ther party may
have now or hereafter against the other including, but not
limited to, claims for past, present or future support or
maintenance, alimony, alimony pendente lite, property division
(including but not necessarIly limited to equitable
distribution), counsel fees, costs or expenses, whether
arising as a result of the marital relation or otherwiee,
whether under the Divorce Code or otherwise, Except, and only
except, for all rights agreements and obligation of whatsoever
nature arising under or which may arise under this Agreement
or for the breach of any part of this Agreement, it is the
intention of Wife and Husband to give to each other by the
execution of this Agreement, a full, complete and general
release with respect to any and all property of any kind or
nature, whether real, personal or mixed, which the other now
owns or may hereafter acquire.
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5, Debts. Husband and Wife represent and warrant to
each other that neither one has contracted any debt or debts,
charges or liabilities whatsoever for which the other party or
their property of their estates shall or may be or become
liable or answerable, and they covenant that they will at all
times keep each other free, harmless and indemnified against
and from any and all debts and 1 iabili ties heretofore or
hereafter contracted or incurred by either of them, except as
expressly provided in this Agreement.
Husband agrees to pay and be solely liable for the
obligation due DAFCU (the home equity loan and Choice/Visa
consolidation loan) and for the mortgagE! on the marital
residence due and owing to 'r.Ae---F41'~a,,1( -Rd 'l',,"J''''~
""ha"!"'lIli1t1l'q, r.1".f-\J\ US {)fp4-. or; ~"ic"I~_ Kft'
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Wife agrees to pay and be solely liable for the debt
on the DAFCU signature loan and the BON-TON charge account,
Each party agrees to save and hold harmless and
indemnity the other party from any liability on the loan
assumed by said party,
6. 112M, Husband and Wife hold title as tenants by the
entireties to the premises known as 1916 Fisher Road,
Mechanicsburg, Pennsylvania. . ". . II 4
's<-Jlft;,..,-"'S A...' OA) -/~/~ Prof.'/t., J~ 0.....,.,,( b7 Vldll (1-.",.)4s'7/<N
The pa~ties agree that the method tor determinin~
the value and distribution of the value of the house shall be
decided if and when a divorce action is filed hy either party.
7, Automobiles, Husband shall retain possession of the
1986 Cavalier and receive it as his own property, wife shall
retain possession of the 1987 Cavalier and receive it as her
own property, The parties agree that they will execute,
acknowledge and deliver any and a 11 documents necessary in
order to effectuate the tran~fer of title to the referenced
uutomobiles to wife or Husband.
8. Medical lnsuran~.... Husband will both provide medical
insurance for the children and Wife.
9, Custody and SUDDort. Wife shall have primary
physical and legal custody of the minor children, Kevin S. L~/
Neidigll and Kristina I.. Neidig., with Husband having partial MI
custody of the children every other weekend from Friday
evening unt 11 Sunday even ing, or as agreed upon by the
parties, it being the intent of the parties to actively
encourage and liberally construe periods of partial custody,
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HU3band agrees to pay Eighty and 00/100 ($80,00)
dollan per week child support to Wife. Nothing in this
agreement however shall prohibit Husband or Wife from seeking
to have the child support obligations modified and/or enforced
through the Domestic Relations Office of the appropriate
county, I~bft<lr. L.I"C~s. 1~ A/I~'J Kt:,-.J io V/~~t Fr.....,,; .1.) -,;..~ ,,, LA)
HUSband" further agrees that Kevin I s band shall be -,:.tl.
allowed to practice at the marital home, provided the times
and dates shall be agreed upon in advance, and such agreement
shall not be unreasonably withheld by Husband,
10, Int,earatl&l). 'rhis Agreement constitutes the entire
understanding of the parties and supersedes any and all prior
agreements and negotiations between them. There are no other
representations, terms, covenants, conditions, agreements or
warranties, express or implied, oral or written of any nature
whatsoever, other than those expressly set forth herein,
11. Waiver of Liability. Husband and Wife each
knowingly and llllderstandingly waive any and all possible
claims that this Agreement is for any reason, illegal or for
any reason whatsoever of public policy, unenforceable in whole
or in part. Husband and Wife each does hereby warrant,
covenant and agree, that, in any possible event, he or she is
and shall forever be estopped from asserting any illegality or
unenforceability as to all or any part of this Agreement,
12, Personal Riahts. Wife and Husband may and shall, at
all times hereafter, live separate and apart, Each shall be
free from any direct or indirect control, restraint,
interference or authority, by the other and shall be treated
in all respects as if they were unmarried. Except as
otherwise provided for in this Agreement, each may reside at
ouch place or places and with such other persons as he or she
m'ilY select. Husband and Wife shall not molest, harass,
disturb or malign each other or the respective families,
friends, colleagues, employel"S or employees elf each other nor
compel or attempt to compel by any means the other to cohabit
or dwell in any manner whatsoever with him or her, The
parties are free to make mutually and voluntarily any efforts
at reconciliation as he, she or they may deem advisable.
The foregoing prov is ions shall not be taken to be an
admission on the part of either Wife or Husband of the
lawfulness or unlawfulness of the causes leading to their
living apart,
This Agreement is not intended to condone and shall
not be deemed to be a condonation on the part of either party
hereto of any act on the part of the other party which has
occasioned the disputes or unhClI'py differences which have
occurred prior to or wh ich may (>("'\I~' l'll\bsequent to the date of
execution of this Aqreement.
In a.. MASCARENAS. Alfreda
DIATOI
. Cu. No.
SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS
(Continuation Sheet)
II'~OWWJ
I II
CREDITOR'S NAME AND I -I DATE CWM WAS INCURRED I A....OUNT
MAlLINO ADDRESS AND CONSIDERATION rOR CWM. or
INCLUDINO ZIP CODE Is I' CWM IS SUBJECT TO CLNM
srr.oPr. SO STATE
ACCOUNT NO. ville. M.D.
:/nnn
John Hanzella, M.D.
Geraldlne Scott, M,D. 4/20/92 $120.00
'tork Hospital
'tork, PA 17405
ACCOUNT NO.
K 9968076
Smith Kllne Secham
P.O. Box 3008
Southeastern, PA19398-30 8 12/92 $41.00
ACCOUNT NO.
'tork Guldance Center
Hillcrest Street $140,00
'tork.PA 17402 4/92
,
ACCOUNT NO.
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Womens' Health Group
1776 S. Queen Street 4/92 $45,00
York, PA 17042 ,
ACCOUNT NO.
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Fairbrother and Byrne
2626 N, 3rd Street
Harrisburg, PA 12/92 U178.00
,
Shll.. No. _ 0' _ Ih'.I, $\11:>101.11 .524,00 J
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CO..oDv..lth of '.nn.Ylyanla *
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On thh, th. \l'~ day of "1'YI~ II , 199.1,
before me, a Notary pUblio penonally appear.d lflu'1 tH,'ol.,
, known to me to be the per. on who.. na__e !.
.ubscr!bed to the within Agreement and acknow~.d9.d that .h.
ex.cuted the same for the purposee therein contain.d.
I have hereunto .S
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IARIlII H, DIDIG . IN THE COURT OF COMMON PLEAS OF
.
PLAINTIFF . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
VI. . 94-6054 CIVIL ACTION - LAW
.
.
.
LAlUtY O. DIDIG .
.
DEFENDANT . IN DIVORCE
.
PETITION PaR SPECIAL RELIEF
ARD ROW comes the PLAINTIFF, KAREN H. NEIDIG, by her attorney,
JAMES M. BACH, and files the within PETITION FOR SPECIAL RELIEF.
ITEM 1. The Petitioner, Karen H. Neidig, is an adult individual
residing at 105 North st. Johns Road, Camp Hill, PA 17011.
ITEM 2. The Defendant is Larry O. Neidig, an adult individual
residing at 1916 Fisher Road, Mechanicsburg, PA 17055.
ITEM 3. On or about the 19th day of May, 1992, the parties
entered into a Post-Nuptial Agreement, a copy of which is
attached hereto and marked as Exhibit A.
ITEM 4. A Complaint in Divorce was filed on October 20, 1994,
and the Plaintiff therein was Karen H. Neidig.
ITEM 5. The Complaint in Divorce triggers the section of the
Post-Nuptial Agreement which speaks to the distribution of real
estate.
ITEM 6. The Post-Nuptial Agreement provides, in pertinent parts,
al follows: -Bu.band agree. to pay, and be solely liable for
the obligation due DAPCU (B~ Equity Loan and Choice Vi..
Con.olidation Loan) and for the ~rtgage on the .arital re.idence
due and owing to the F.M.B.A. U.S. Depart..nt of Agriculture-.
The property has been appraised at $85,000.00.
ITEM 7. Petitioner avers and believes she is entitled to one-
half of the $85,000.00, based on the language in the Post-Nuptial
Agrelllment.
IT~M 8. Petitioner is requesting that the Court declare
andadjudicate her entitlement to be one-half of the value of
the $85,000.00, without any deductions for mortgages, or home
equity loans.
ITEM 9. The Petitioner also requests any other relief that
the Court deems reasonable and advisable.
1.
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kATHY A. MORROW
AtT1lllHIV AT LAw
217 S. cARlISLI S1I11l
P.O. lOX 2SO
IIlw ILOOAVI11I. PI. 11tN.
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PROPERTY SETTLEMENT AND CUSTODY AOREBMENT
~JI.A./
This Agreement is made by and between KAREN NEIDIGJ( of
Cumberland county, Penney 1 vania, ("Uife") and LARRY NEIPIGJI of
CUmberland county, Pllnnsylvania, ("lIusbllnd"), the \ <\~ '
day of ~...'-\ I 1992.
!il'.l'NESSE1'1l
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WHEREAS, the parties hereto are husband and wife, having
been married on August 22, 1975 in Mechanicsburg, Cumberland
County, Pennsylvania; and
WHEREAS, Husband and wife are parents of Kevin S. Neidig.';',c/
born on Jllnuary 12, 1976 and Kristina L. Neidig~ born on Hay-
30, 1979: and 11
HHEREAS, certain unhappy . differonces, disputes,
misunderstandings and difficulties have arisen between the
parties and the parties have decided that their marriage is
irretrievably broken, that it is their intention to live
separate and apart for the rest of their natural lives, that
they are desirous of settling fully and finally their
respsctive financial and property rights and obligations as
between each other including, without limitation by
sped f ication:
1. The settling of all matters between them reiating to
tho ownership of real and per~onal property including prop'!rty
heretofore or subsequently acquired by either party:
2. The seHling of all disputes, rights and/or interests
between them arising out of or by reason of their marriage
including but not lImited to the past, present and future
support, alimony, counsel fees, cost or maintenance of Wife by
Husband or of lIusband by Wife;
J. 1'ho settling of ,,11.natters l:etweon them relating to
the past, present ami future support and/or' maintenance of the
children;
4, The Implementation 01 cU!ltody and/or villitation
arrangmnf.lllts for th... mInor chi 1<1....Hl of t"... parties; alld
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5, In general, the settling of any and all actual and
possible claims by each party against the other or again8t
their respective estates,
NOW TIIEREFORE, in consideration of the premises .and of
the mutual promises, covenants and undertakings set forth in
the Agreement and for other good und valuable consideration,
the receipt and adequacy of which is hereby acknowledged by
each of the parties hereto, Wife and lIusband, each intending
to be legally bound hereby, covenant and agrees as follows:
1, Advice of Counsel. The provisions of this Agreement
and their legal effect have been fully explained to the Wife
by Kathy ^. Morrow, Esquire, cf New Bloomfield, PA. Husband
is not represented by counsel but has been advised to retain
counsel, The parties acknowledge that each has fully
disclosed his or her respective financial situations to the
other including his or her property, estate, assets,
liabilities, income and expenses, that each is familiar with
and fully understands the facts, including the property,
assets, earnings and income of the other, and that each has
been fully informed as to his or her legal rights and
obligations. Each of the parties acknowledges and agrees,
that, after having received such advise and with such
knowledge, this Agreement is, in the circumstances, fair,
reasonable and equitable, that it is being entered into
freely, volunturily, and in good faith and that the execution
of this Agreement is not the result of any duress, undue
influence, coercion, collusion and/or improper or illegal
agreement, The parties further acknowledge that they have each
made to the other a full and complete disclosure of their
respective assets, estate, liabilities, and sources of income
and that they waive any specific enumeration thereof for the
purposes of this Agreement.
2. ~int Assets.
a. The parties agr~e thnt the only ~9sets which they
own in joint name have been divided into two (2) equal shares
of approximately equal value determined by reference to the
fair market value of such property.
b. Wife and "usband agree that the foregoing
property dispositions constitute an equitable distribution of
all of their property, pursuant to Section 401 of tho Divorce
Code, 2] Pa. Cons. State. sec. 401. Wife and Husband hereby
waive any rl.ght to division of their property except as
provided for in thls Agreement.
]. 1&CJ..i'l..LI_E!~!;!. Wlfe shall he responsible for her legnl
fees incurred if a "no-fault" dlvorce is filed by Wife and not
contested by Husband and lIu"lb,lmJ shall be respo""llblo for his
lognl fees.
.
4, Mu~ual Releases, Except. and only except. for all
ri9hts, agreements and obligations of whatsoever nature
arising und.r or which may arise under this Agreement or for
the breach of any part of this Agreement, Wife and Husband
each do hereby mutually remise, release, quitclaim and forever
discharge the other and the estate of the other, for all time
to CONe, and for all purposes whatsoever, of and from any and
all rights, title and interest, or claim in or against the
property (including income, and gain from property hereafter
accruing) of the other or against the estate of the other, of
whatever nature and wherosoever situate, which he or she now
has or at any tim~ hereafter may have against the other, the
..tal:e of the o~her or any part thereof, whether arising (a)
out of any former ac~s, con~rac~s, engagements or liabilities
ot Buch other, (b) by way of dower or courtesy or claims in
the nature of dower or courtesy or widow's rights (c) as
falllily exempHon or similar allowance, or (d) under the
intestate laws, the right to ~ake against ~he spouse's will,
the right to treat a lifetime conveyance by the other as
testamentary, or all other rights of a surviving spouse to
participate in a deceased spouse's estate, whether arising
under the law of (i) Pennsylvania, (ii) any other state,
COlllmonwealth or terrltory of the united states, or (iii) any
other country. Except, and only except for all rights,
agreements and obligations of whatsoever nature arising under
or which may arise under this Agreement or for ~he breach of
any part of this Agreement. the parties agree that this
Agreement shall be and constitute a full and final resolution
of any and all claims which each of the rarHes may have
against the other for equitable distr1but on of property,
alimony, counsel fees and expenses, alimony pendente lite or
any other claim pursuant to the Pennsylvania Divorce Code or
the divorce laws of any other jurisdiction, The parties
further release and waive any rights which either party may
have now or hereafter against the other including, but not
limited to, claIms for past, present or future support or
maintenance, alimor.y, allmony pendente lite, property division
(tllcludlnq but not neces3arIly limited to equitable
distribution), counsel fees, costs or expenses, whether
arising all a result of the marital relation or o~herwise,
whether under the Divorce code or otherwise, Except, and only
excep~, for all rights agreements and obligation of whatsoever
nature adsing under or which may al'lse under this Agre"lmant
or for the breach of any part of this Agreement, it is the
intention of Wife and Husband to give to each other by the
exeout.ion of th is Agreement, a full, complete and general
release with respect to any and all property of any kind or
nature, whether real, personal or mixed, which the other now
own!l or may hereafter acquire.
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5. Oebl:s, Ilusband and Wife represent and warrant to
each other that neither one has contracted any debt or debts,
charges or liabilities whatsoever for which the other party or
their property of their estates shall or may be or become
liable or answerable, and they covenant that ther will at all
times keep each other free, harmless and indemn fied against
and from any and all debts and liabilitiee heretofore or
hereafter contracted or incurred by either of them, except as
expressly provided in this Agreement,
Husband ngrees to pay and be solely liable for the
obllgntion due DAFCU (the home equity loan and Choice/Visa
consolidation loan) and for the mortgage on the marital
residence due IInd owing to 'rll8 Fh&t:::l\1l.D1r 'Ad.- "'r).~t,~
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Wife agrees to pay and be solely liable for the debt
on the DAFCU signature loan and the BON-TON charge account,
Each party agrees to save and hold harmless and
indemnify the other party from any liabll!ty on the loan
assumed by said party,
6. 1I.2m.Ii!, lIusband and Wife hold title as tenants by the
entireties to the premises known as 1916 Fisher Road,
Hechnnicsburg, ,Pennsylvania.. . . 1. 4
's<.J";"""'s 11,,1 C,.,rI~'1 f'r"l!v-J... IS o"'-I/~<~ ~:7 V,d., !-w,.),ss'Y fW'
The p~{[es agree that {he method (or determining
the value nnd distribution of the value of the house shall be
decided if nnd when a divorce action is f lled hy III ther party.
7, Aut:omobi1~ lIusband shall retain possessIon of the
1986 Cavalier and receive it as his own property, Wife shall
retain possession of the 1987 Cavalier and receive it: as her
own property. The parties agree that they will execute,
acknowledge and deliver any and all documents necessary i>>
order to effectuate the tran~fer of title to the referenced
UUt:omoblles t~ Wife or lIusband.
8, M.edlcal InsuraIL~ Ilusband will both prov ide medical
insurance for the chlldren and Wife.
9, Custod.Y---!lnY__SJ!PIDH:l_~ Wife sha 11 have pr imsry
physical and legal custody of the minor children, Kevin s. L~/
.'eidlglf and Kristina ro. "eldiy,. with lIu9band having partial NY
cuetody of the ch Ildren every other weekend from Fr iday
evening unti I Sunday even I nCJ. or <19 agreed upon by the
parties, It being the Intent of the parties to actively
encourage and liberally construe periods of partial custody,
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Husband agrees to pay Eighty and 00/100 ($80.00)
dollars pet week child support to Wife, Nothing in this
agteement however shall prohibit husband or Wife from .eeking
to have the child support obligations modified and/or enforced
throuljJh the Domestic Relations Office of the appropriate
county, J~j~no'. ~,us. -I,; A/II'oJ ICr.,..J .to VIS~+ ,;,,,;,,) J.j 1Q....~~1 /!AI
tlusband further agrees that Kevin's band shall be ,;#J.
allowed to practice at the marital home, provided the times
and dates shall be agreed upon in advance, and such agreement
shall not be unreasonably withheld by Husband.
10, IntearatJ&n. '1'his Agreement constitutes the entire
Understanding of the parties alld supersedes any and all prior
dgt'sement. and negotiations between them. There are no other
tepre.ent~tions, terms, covenants, conditions I agreoments or
warranties, expreos or implied, oral or written of any nature
whatsoever, other than those expressly set forth herein,
11. Waiver of Liability. Husband and Wife each
knowingly and understandingly waive any and all possible
claims that this Agreement is for any reason, illegal or for
any reason whatsoever of publ ie pol icy, unenforceable in whole
or in part, Husband and Wife each does hereby warrant,
covenant and agree, that, in any possible event, he or she is
and shall forever be estopped from aSgerting any illegality or
unenforceability as to all or any part of this Agreement,
12, Personal Riahts. Wife and tlusband may and shall, at
all times hereafter, live separate and apart, Each shall be
free from any direct or indirect control, restraint,
interference or aut.hority, by the other and shall be treated
in all respects as if they were unmarried, Except as
otherwise provided for in this Agreement, each may reside at
such place or places and with such other persons as he or she
'lIay select, Husband and Wife shall not molest, harass,
disturb or malign each other or the respective families,
friends, collengues, employel's or employees (.f each other nor
compel or attempt to compel by any means the other to cohabit
or dwell in any manner whatsoever with him or her, The
parties are free to make mutuully and voluntarily any efforts
at reconciliation as he, she or they may deem advisable.
The foregoing provisions shall not be taken to be an
admission on the part of either Wife or Husband of the
lawfulness or unlawfulness of the causes leading to their
living apart.
This Agreement Is not intended to condone and shall
nlOt be deemed to be a cOlldolli'lt Ion on the part of either party
hereto of any act 011 the part of the other party which ha~
occasioned the disputes or llnhilPI'Y differences wh lch have
occurred pr ior to or wh leh may n("'1I r' subsequent to the date of
execution of this Agreement.
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htAI'UIN ~I M,l. M,MII
DUN H. NIIDIG, . IN THE COURT OF COMMON PLEAS OF
.
plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
va. CIVIL ACTION - LAW
. NO. 94 -6054 CIVIL
.
LARRY O. NEIDIG,
Defendant CIVIL ACTION - IN DIVORCE
D....D~'. ,al.. ... ATTO...Y-CLIBKT palVIL.G.
HllTOltY O. CA8B
plaintiff filed a petition for special relief seeking to
enforce a written property Settlement and custody Agreement
dated May 18, 1992, that had been prepared by her former
attorney, ~athy ,Morrow, Esquire. In particular she asked
that Detendant b ordered to pay her the sum of $42,500.00 tor
her interest in marital real estate.
At the hearing, the Court heard the testimony of both the
Plaintiff and the Defendant. Both agreed that the writ~en
Agreement was prepared by Plaintiff's former attorney on the
basis ot a discus. ion which the attorney had with both parties,
in the pr..ence of each other, in her office. However, the
partie. had va.tly different interpretations of two critical
provisions of the Agreement:
1, the second sentence of Paragraph 5, concerning
Defendant'. obligation for mortgage payments; and
2, the third sentence of Paragraph 6, concerning the
valuation and distribution of the marital real estate
in the event of divorce.
Because the parties could not agree on an interpretation of
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these provisions, Defendant reque.ted the te.timony of
Plaintiff's former attorney, the scrivener of the document, but
plaintiff asserted the attorney-client privilege.
Defendant then requested and was granted the opportunity to
brief and argue the issue of that privilege.
ARQUllllII'l'
The attorney-client privilege is codified in 42 Pa.C.S.A. 1
5928, which provides:
In a civil matter counsel shall not be
competent or permitted to testify to
confidential communications made to him by
his client, nor shall the client be
compelled to disclose the same, unless in
either case this privilege is waiv~d upon
the trial by the client.
This privilege is designed to engender confidence between
the attorney and his/her client that encourages and permits an
open dialogue, .state of Benton v. .echanicsbura 8ub-Acute
.ehab Assoaiates, 42 Cuab. 512 (1"3).
However, the privilege is not absolute, As the statute
indicates, it applies only to "confidential" communications,
. i.e., to those that are made with the intent that they be kept
in confidence. Leonar4 'aakel I Anne Boven poulin,
21nn.vlvania .vi4ence 1501.1 (1'.7), If made in the presence of
a third party who is not an agent of the attorney or the
client, the communication clearly is not intended to be
. confidential and therefore is not privileged, JJ.
Thus, in Lout..nhi.er v. 00440, 45t 'a. 51a, ato A.a. 7.1
-2-
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(1.70), where a donor sued to recover real estate deeded to a
donee, claiming an unconsummated gift, the court permitted the
donor's attorney to testify .s to statements made by his client
in the presence of the donee, holding that a communication
cannot be privileged if made in the presence of a third person
or the adverse party.
Also on point is Johnston v. Johnston, 34. .. 8up.r. 417,
411 A.14 1074 (1,.5), where the parti.s to a civil action
reached a settlement during a hearing, in consequence of which
the terms of settlement were recited for the record with the
understanding that a written agreement would tollow that all
would sign, The agreement was prepared but one party retused
to sign, resulting in proceedings tor contempt ot court. In
the contempt proceedings, the tormer attorney tor the
recalcitrant party was permitted to testity to confirm and
explain statements made by his former client in open court and
during the preceding negotiations. The privilege was held not
to extend to statements made to a third party or to the court.
In the case at bar the testimony shows that the Plaintiff
and Detendant met tw~ce in the office at Plaintift's former
attorney. At the first meeting they discussed with counsel the
terms of what became the property Settlement and Custody
Agreement dated May 19, 1992, The second meeting was tor the
purpose of executing that Agreement. Any statements mad. by
Plaintiff to her counsel in the presence of Defendant during
-)-
.ith.r ...ting w.r. obviously not int.nd.d to b. confid.ntial
and th.r.for. cannot b. privileged. Lout..Bhis.r Y. DOddo,
supra.
The writt.n Agr....nt wa. pr.pared by plaintiff's form.r
attorn.y on the basi. of those non-privileged communications
and i. lik.wi.e unprotected for the same r.asons. Having
originated from non-privileged information, the docum.nt cannot
achieve a higher status than that from ~hich it was derived I
the whole is merely the sum of ita parts, not greater than
those part.. Even though it it may have been prot.cted during
the drafting stage as the attorney's work product, its
disclosure to both plaintiff and Def.ndant for review, approval
and signature prove. that neither plaintiff nor her attorn.y
int.nd.d that the document or its contents be k.pt in
confidence, Thus, the Agreement a180 is not privileged.
Defendant allege. that certain provisions of the Agreem.nt
are ambiguous and seeks a clarification of those ambiguities.
If the Agreement itself is not privileged, then the meaning of
it. term. is likewise not privileged and there can be no bar to
calling Plaintiff'. former coun.el to explain tho.e term..
JOhD.tOD v. JOhBstOB, supra,
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Accordingly, Defendant respectfully requests that
Plaintiff'. former attorney be called and permitted to te.tify
a. to .tatoments made to her by the parties in the presenoe of
.ach other and to explain the ambiguous terms of that
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D.RBN H. NIIDIG, I IN TIIB COURT or' CODON PLIAS or
plaintiff I CUMBIRLAND COUNTY, PINN8Yt.VANIA
I
v.. I CIVIL ACTION - LAW
I
I NO. 94 -60~4 CIVIL
LARRY O. NEIDIG, .
.
Defendant I CIVIL ACTION - IN DIVORCIl
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TO THE PROTHONOTARY:
Plea.. enter my appearance for and on behalf of the
Defendant herein, Larry O. Neidig, re.ervinq all riqht. to
plead.
Datel /2a-.-J.,. '7 , 1994
~~~
Marlin R. McCaleb
Attorney I.D. No. 063~3
319 Ba.t Main street
Mechanic.burg, Penn.ylvania 170~~
(717) 691-7770
rAXI (717) 691-7772
Attorney for Defendant
........ .. DIDIO . IN THE COURT OF COMMON PLEAS or
.
PLAINTIFF . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
VS. . 94-6054 CIVIL ACTION - LAW
.
.
.
LADY O. DIDIO .
.
DEFENDANT . IN DIVORCE
.
OIlDU
.nU'IOII POJt SPECIAL IlBLI...
AD ..., on this 2'] K day of 0 c:t...lc,,u
upon consideration of the within PETITION, it i8 hereby
and directed that a Hearing will be held on the I~~
of .JtO/l-", .....1.. , ./ , 1994, in Court Room No. ,,.-
in the Cumberland County Court House, Carlisle, PA 17013.
, 1994,
ordered
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vs.
IN TP.E COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
94-6054 CIVIL ACTION - LAW
u.q B. DIDIO
PLAINTIFF
LAlla!' O. DIDIO
DEFENDANT
IN DIVORCE
PETITION POa SPBCIAL RBLIBr
ARD lOW comes the PLAINTIFF, KAREN H. NEIDIG, by her attorney,
JAMES M. BACH, and files the within PETITION FOR SPECIAL RELIEF.
ITEM 1. The Petitioner, Karen H. Neidig, is an adult individual
residing at 105 North st. Johns Road, Camp Hill, PA 17011.
ITEM 2. The Defendant is Larry O. Neidig, an adult individual
residing at 1916 Fisher Road, Mechanicsburg, PA 17055.
ITEM 3. On or about the 19th day of May, 1992, the parties
entered into a. Post-Nuptial Agreement, a copy of which is
attached hereto and marked as Exhibit A.
ITEM 4. A Complaint in Divorce was filed on October 20, 1994,
and the Plaintiff therein was Karen H. Neidig.
ITEM 5. The Complaint in Divorce triggers the section of the
Post-Nuptial Agreement which speaks to the distribution of real
estate.
ITEM 6. The Post-Nuptial Agreement provides, in pertinent parts,
as follows: -Busband agr..s to pay, and ba solely liable for
tile obligation clue DAPCU (BOlle Equity Loan and Choice Yi..
Consolidation Loan) and for the IIOrtgage on the _rital residance
due aDd owing to the r.M.B.A. U.8. Departaent of Agrlcultur.-.
The property has been appraised at $85,000.00.
ITEM 7. Petitioner avers and believes she is entitled to on~-
half of the $85,000.00, based on the language in the Post-Nuptial
Agreement.
ITEM ~. Petitioner is requesting that the Court declare
andadjudicate her entitlement to be one-half of the value of
the $85,000.00, without any deductions for mortgages, or home
equity loans.
ITEM 9. The Petitioner also requests any other relief that
the Court deems reasonable and advisable.
1 .
,
,
-
kATHY A. MORROW
ATTOIINI\' AT LAW
217 .. CA_llStl ...11l
'.0. lOX 2"
IIlw IlOOMlIIl.. 'A l~
PROPERTY SETTLEMENT AND CUSTODY AGREEMENT
k J lA. /
This Agreement Is made by and between KAREN NEIDIG~ ot
Cumberland county, Pennsy! vrmia, ("IH fe") and LARRY ~~~G~ of
cumberland County, Ptlnnsyl vani", ("Husband"), the
day of ~~~ ' 1992.
lUI.NESSETII
WHEREAS, the partIes hereto are husband rmd wife, having
been married on August 22, 1915 in Mechanicsburg, Cumberland
county, Pennsylvania: and
WIlEREAS, Husband and wife are parents of Kevin 5, Neidig~;'#
born on January 12, 1916 and Kristina L. Neidig)f born on May-
30, 1919' and ~
WIlEREAS, certain unhappy . differences, disputes,
misunderstandings and dif flcul ties have arisen between the
parties and the parties have decided that their marriage is
irretrievably broken, thllt it is their intention to live
separate and afart for the rest of their natural lives, that
they are des rous of settling fully and finally their
re.pective financial and property rights and obligations as
between each other including, without limitation by
specification:
1. The settling of all matters between them relating to
tho ownership of rea I and per'9onal propll'rty including property
heretofore or subsequently acquired by either party,
2. The settling of al 1 disputes, rights and/or interests
between them arising out of or by reason of their marriage
including but not 1 imi ted to the past, Ilfesent and future
support, alimony, counsel fees, cost or maintenance of Wife by
IIusband or of Ilusband by W lee:
3,
\'.he put,
Children I
1'he settling of all matters between them relating to
present and future support and/or maintenance of thlll
4. The lnlplementl\tlon at custody and/or visitation
arrangements for the minor children of the parties: and
E'XHIIJJr A .,
..1..1._
A_oil..
'" ~ t.... _
U, ... lilt
.. -11I11I. fA'_
5, In general, the se~~ling of any and all ac~ual and
possible claims by each par~y against the other or against
their respective estates.
NOW THEREFORE, in consideration of the premises and of
the mutual promises, covenants and undertakings set forth in
the Agreement and for o~her good and valuable consideration,
the receipt and adequacy of which i~ hereby acknowledged by
each of the parties hereto, wife and Husband, each intending
to be legally bound hereby, covenan~ and agr.ees as follows:
1, advice of couns~~. The provisions of this Agreement
and ~heir legal effect h!'lve been fully explained to the wife
by Ra~hy A. Morrow, Esquire, cf New Bloomfield, PA, Husband
is not represen~ed by counsel but has been advised to retain
counsel. The parties acknowledge that each has fully
disclosed his or her respec~ive financial si~uations to the
other including his or her property, esta~e, as.ets,
liabili~ies, income and expenses, that each is familiar with
and fully understands the facts, including the property,
assets, earnings and income of the other, and that each has
been fully informed as ~o his or her legal rights and
obligations, Each of the parties acknowledges and agrees,
that, after having received such advise and with such
knowledge, this Agreement i!I, in the circumstances, fair,
reasonable and equitable, that it is being en~ered into
freely, volun~ari1y, and in good faith and that the execution
of ~his Agreement is not the result of any duress, undue
influence, coercion, collusion and/or improper or illegal
agreement, The parties further acknowledge that they have each
made to the other a full and complete disclosure of their
respec~ive assets, estate, liabilities, and sources of income
and ~hat they waive any specific enumeration thereof for the
purposes of this Agreement.
2, ..!.Qint Asu.Y!'
a. The parties agr~e th;1t the only 1l9sets which they
own in join~ name have been divided into two (2) equal shares
of approxima~ely equal value determined by reference to ~he
fair market value of such proper~y.
b, Wife and Husband agree that the foregoing
property dispositions constitute an equitable distribution of
all of their property, pursuant to Section 401 of the Divorce
Code, 23 Pa, Cons, state, sec. 401. wife and Husband hereby
waive any right to divlslon of their proper~y except as
provided for in this Agreement.
J, 1&9AL-[MUI' Wife sha 11 be responsible for her legal
fees incurred if a "no-fault" dlvorce is filed by Wife and not
contested by Husband and Husband shall be responsible for his
1egft1 fees,
4. Mutual Releases. Except, 3nd only except, for all
rights, agreements and obligations of whatsoever nature
ari.ing under or which may arise under this Agreement or for
the breach of any part of this Agreement, Wife and Husband
each do hereby mutually remise, release, quitClaim and forever
discharge the other and the estate of the other, for all time
to come, and for all purposes whatsoever, of and from any and
all rights, title and interest, or claim in or against the
property (including income, and gain from property hereafter
accruing) of the other or against the estate of the other, of
whatever nature and wheresoever situate, which he or she now
has or at any tim~ hereafter may hove against the other, the
e.tate of the other or any pa..t; thereof, whether arising (a)
out of any former acts, contracts, engagement. or liabiliti..
of such other, (b) by way of dower or courtesy or claims in
the nature of dower or courtesy or widow's rights (c) as
family exemption or similar allowance, or (d) under the
intestate laws, the right to take against the spouse's will,
the right to treat a lifetime conveyance by the other ae
testamentary, or all other rights of a surviving spouse to
participate in a deceased spouse t s estate, whether arising
under the law of (i) Pennsylvania, (11) any other stat:.e,
commonwealth or territory of the United states, or (iii) any
other country, Except, and onl y except for all rights,
agreements and obligations of whatsoever nature arising under
or which may arise under this Agreement or for the breach of
any part of this Agreement, the parties agree that this
Agreement shall be and constitute a full and final resolution
of any and all claims which each of the parties may have
against the other for equ i table distribution of property,
alimony, counsel fees and expenses, alimony pendente lite or
any other cl~im pursuant to the Pennsylvania Divorce Code or
the divorce hws of any other juriSdiction, The parties
further release and waive any rights which either party may
have now or hereafter against the other including, but not
1 imi ted to, cIa ims for past, present or future support or
maintenance, alimony, alimony pendente lite, property division
(includinq but not necessarHy limited to equitable
di.tribution), counsel fees, (:osts or expenses, whether
arilling as a result of the marital relation or otherwise,
whether under the Divorce Code or otherwise, Except, and only
except, for all rights agreements and obligation of whatsoever
nature arising under or which may arise under this Agreement
or for the breach of any part of this Agreement, it is the
intention of Wife and lIusband to give to each other by the
execution of th is Agreement, a fu 11, complete and general
release with respect to any and all property of any kind or
nature, whether real, personal or mixed, which the other now
owns or may hereafter Qcqull'e.
\
I
5, Debts, lIusband and Wite represent and warrant to
each other that neither one has contracted any debt or debts,
charges or liabilities whatsoever for which the other party or
their property of their estates shall or may be or become
liable or answerable, and they covenant that they will at all
times keep each other free, harmless and indemnified against
and from any and all debts and liabilities heretOfore or
hereafter contracted or incurred by either of them, except as
expressly provided in this Agreement.
lIusband agrees to pay and be solely liable for the
obligation due DAFCU (the home equity loan and Choice/Visa
consolidation loan) and for the mortgage on the marital
residence due and owing to 'r.he fli'~lUl'" .Ad "'tl...~t_ -or
H...,h....1 ~'.1l1r9, r.tn. ItA us {)C'p~, 0 {:; Or."1 CU I~. f;4'
-" ~d
Wite agrees to pay and be solely liable for the debt
on the DAFCU signature loan and the BON-TON charge account.
Each party agrees to save and hold harmless and
indemnify the other party from any liability on the loan
assumed by said party,
6, HQu, lIusband and Wife hold t1t:lfl as tenants by the
entireties to the premises known as 1916 FiSher Road,
Hech'lnicsburg, ,Pennsylvania. . ././ '1'/ 4
,s<..,J'.;"""'s A...' o..r/~'1 f'rcl!vi., IS (')uol/',~ '7 VJOlt ~""'''''ss?" 1<N'
The P&tties agree that the method (or determinin~
the value and distribution of the value of the house shall be
decided if and when a divorce action is filed hy e1t:her party,
7. AutomObiles, lIusband shall retain possession of the
1986 Cavalisr and receive it as his own property. Wife shall
retain Possession of the 1987 Cavalier and receive it as her
own property. The parties agree that they will execute,
acknOWledge and deliver any and all document A necessary in
order to effectUate the transfer of title to the referenced
lIutomobiles t'J Wite or "usband,
8, Medical Insuralli;L. "Usband will both provide medical
insurance for the children and Wife.
,.... A. .....
......, It ""
"' .. ear... .....
.."...
'v fl.... M.1WI
9, Custody IInd SYPJlQr.L. Wife shall have primary
Physical and legal custody of the minor children, Kevin S, L~/
tie digit and Krlstina l.. "eidig., wlth lIusband having partial M/
custody of the chlldren every other weekend frolll Friday
evening untH Sunday evening, or as agreed upon by the
parties, it being the intent of the parties to actively
encourage and liberally construe periods of partial custody,
IAIIN a. __
_"I...
II1t.t,,1hIII "....
.......
... ..."" .a "...
Husband agrees to pay Eighty and 00/100 ($80,00)
dollat'1 per week child support to wife, Nothing In t.hls
agreement however shall prohibit Husband or wife from seeking
to have the child support obligations modified and/or enforced
through the Domestic nelations Office of the appropriate
county. 1,4.~b~cJ,f Lr(~s. -f;; A/I~<J J(cr.";'to V/~-/t ".....,,> J., -,;...!>,~ U
Husband" further agrees that Rsv In I s band shall be ,.,;,
allowed to practice at the marital home, provided the times
and dates shall be agreed upon in advance, and such agreement
shall not be unreasonably withheld by Husband,
10. J,ntearatJ..Q.'J' '1'his Agreement constitutes the entire
und.ntanding of the parties and supersedes any and all prior
IIgr..ments and negot.Iations between them. There are no ot.h.r
r.pre.entlltions, terms. covenants I conditions I agr.ements or
warranties, express or implied, oral or written of any nature
whatsoever, other than those expressly set forth herein.
11. waiver of LU!J;!i1itv. Husband and Wife each
knowingly and understandingly waive any and all possible
claims that this Agreement is for any reason, Illegal or for
any reason whatsoever of public policy, unenforceable in whole
or In part. Husband and Wife each does hereby warrant,
covenant and agree, that, in any possible event, he or she Is
and ehall forever be estopped from asserting any Illegality or
unenforceablllty as to all or any part of this Agreement,
12. personjll Rltlhts. wife and Husband may and shall, at
all times hereafter, live separate and apart, Each shall be
free from any direct or indirect control, restraint,
Interference or authority, by the other and shall be treated
In all respects as if they were unmarried, Except as
otherwise provided for in this Agreement, each may reside at
such place or places and with such other persons as he or she
may select. Husband and wife shall not molest, harass,
disturb or malign each other or the respective families,
friends, collengues, employers or employees of each other nor
compel or attempt to compel by ~ny means the other to cohabit
or dwell in any manner whatsoever with him or her, The
parties are free to make mutually and voluntarily any efforts
at reconciliation as he, she or they may deem advisable.
The foregoing provlsioll!'l shall not be taken to be an
admission on the part of either Wife or lIusband of the
lawfulness or unlawfulness of the causes leading to their
living apart,
Thls Agreement is not intended to condone and shall
not be deemed to be a condonation on the part of either party
hereto of any act on the part of the other party which has
occallioned the disputes or unhappy differences which have
occurred prior to or which may oce,,!; subsequent to the date of
execution of this Agreement.
R~.. .. "IDIG, t 1M TIm COVltT OP CClNKOR 'LIU OP
.1.iDtUf t ctJICI.aLAJm COUllTY, 'DIf.YLVAIfU
t
v. I 9.-605. CIVIL ~..
I
... LAUy O. "IDIG, t
D.feaclQt I IM DIvoac.
IM Ut UCORD TO RmlAIM 0'1IIf
OJlD.. O. COURT
AND 1fOIf, tbi. 12th day of D.ceab.r, 19,., upoa
coa.id.ratioD of tb. '.titioD for Sp.ci.l a.li.f fil.d iD tha
a.bov.-captioa.d ..tt.r, ud fOllowiDg an aft.raooD of h..r1q,
aad upoa cOD.id.ration of the D.fudant'. or.l motioD for.
coatiDuanc. to bri.f the i..u. of the .ttora.y-clieat privil.g.
witb r..p.ct to tb. Plaintiff'. r.lation.bip witb h.r cOIID..l,
X.thy A. Morrow, ..quir., and the .aid IIOtion for a contiDuanc.
Dot b.iDg obj.ct.d to by tb. Plaintiff, the r.cord .hall r"'iD
o.pea for the purpo.. of con.id.ring the r.qu..t of D.feudaDt to
call Xathy A. Morrow, ..quir., a. hi. witn..., and cOIID..l ar.
r.qu..t.d to furai.h bri.f. on tb. i..u. of the attoraay-clieat
privilege which ha. b.en ....rt.d by the Plaintiff within ODe
~th of today'. dat..
POllowing the .ubai..ion of .uch bri.f., GOIID..l
ar. r.qu..t.d to coatact the Court for the .cb.duling of u
.ddit~paal proc..ding.
By tb. Court,
J.... N. .ach, ..quir.
Coun..l for .laintiff
MarliD a. MclCalab, ..quir.
Coun..l for DafendaDt
..lr
ItAItIH B. NBIDIG,
Plaintiff
v.
I
I
t
I
I
t
I
IN THB COURT or COMMON PLBA8 or
CUMBERLAND COUNTY, PBHNSYLVAHIA
CIVIL ACTION - LAW
LARRY O. NEIDIG,
Defendant
HO. 94-6054 CIVIL TERM
IN RBI ATTORNEY-CLIENT PRIVILEGE
HElPORS OLBR. J..
OPINION and ORDER OF COURT
Oler, J.
Thi. ca.e wa. commenced by a complaint filed in divorce by
laren H. Neidig (Plaintiff) again.t her hu.band, Larry O. Neidig
(Defendant), on October 20, 1994. A Petition for Special Relief
wa. filed by Plaintiff on October 27, 1994, and a hearing wa. held
to con.ider the Petition on Monday, December 12, 1994, before the
under.igned judge. At thi. hearing, an i..ue aro.. with regard to
the attorney-client privilege, which ie the .ubject of thie
Opinion. For the following rea.on., the privilege will not be held
to preclude certain te.timony proffered by Defendant. The fact.
..y be .ummarized a. follow.t
The Petition for Special Reli~f filed by Plaintiff reque.t.
thi. Court to enforce a poet-nuptial agreement (Agreement) ent.red
into by the partiee.1
The Agreement w.. drafted by lCathy A.
Morrow, I.quire, and eigned by the partie. on May 18, 1992.a Me.
Morrow wae repre.enting Plaintiff at the time,a Defendant wa. not
,epre.ented by coun.el.
I
B.e 'etition for Special Relief.
a 'etition for Special Relief, paragraph 3, and Ixhibit A.
a Defendant'. Brief ReI Attorney-Client Pdvileqe, at 1,
8rief of laren H. Neidig in Support of the I..ue of Attorney-Client
'rivil.g., at 2.
NO. 94-6054 CIVIL TBRM
At the h..ring on the P.tition for Sp.oial R.li.f, the Court
h.ard teatillOny from both p.rti... The t..timony .how.d that
Plaintiff and Def.nd.nt met twio. in the offic. of M.. Morrow with
r.gard to the Agr..m.nt. Following .x.oution of the Agr....nt, a
di.pute .ro.. .. to the m..ning of c.rtain provi.ion.. A
r..olution of thi. di.pute i. n.o....ry to . proper ruling on
Plaintiff'. P.tition.
Th. provi.ion. in qu..tion are cont.ined in paragr.ph. five
and .ix of the Agr..m.nt. Th. ..cond .ent.nc. of paragr.ph five
provide. that . r h] u.band .gree. to pay .nd b. .ol.ly liable for the
oblig.tion due DArCU (th. home .quity loan .nd Choio./Vi..
con.olid.tion loan) .nd for the mortgage on the ..rital r..id.nc.
due and owing to F.M.B.A. u.s. Dept. of Agricultur.... Th. third
..nt.nc. of par.gr.ph 6 of the Agre.m.nt et.t.. . (t J he parti.e
agre. that the method for d.termining the value and di.tribution of
the value of the hou.e .hell be decid.d if .nd when a divorce
action b fUed by either party....
According to t..timony .dduced at the h.aring, the appr.i..d
value of the prop.rty in qu..tion i. $85,000.00. Plaintiff claiae
that, pur.uant to the Agr..ment, .he i. .ntitled to on.-h.lf of
thi. -.aunt, without any deduc.tion. for mortg.ge. or h~ .quity
· P.tition for Specid R.U.f, Exhibit A, paragraph 5.
· P.tition for Special R.li.f, Exhibit A, paragraph 6.
:2
NO. 94-6054 CIVIL TSRM
loan..- According to Defendant'. te.timony, however, it wa. hi.
under.tanding that .fter the out.t.nding lien. were paid, the
equity would b. .plit evenly b.tween the p.rtie.. It appear. to
the Court that the provi.ion. .re at l...t arguably .u.ceptible of
both int.rpret.tion..
At the he.ring, Defendant .ought to call the .crivener of the
document, Me. Morrow, to te.tify with regard to th..e provi.J.on..
Pl.intiff object.d to .uch te.timony on the b..i. of the attorney-
client privileg..
Defendant reque.ted a continuance and the
opportunity to brief the iuu. of whether the .ttorney-client
privilege .hould be held to preclude the te.timony of M.. Morrow.
The requ..t wa. granted' and brief. have now be.n received fr~
coun.el.
penn.ylvani. h.. codified the common-law attorn.y-client
privilege a. follow.1
In . civil matt.r coun.el .h.ll not be
competent or permitted to t..tify to
confidenti.l communication. made to him by hi.
client, nor .hall the client be compelled to
di.clo.e the .&me, unle.. in either ca.e thi.
privUege ie waiv.d upon the trial by the
client.
Act of July 9, 1976, P.L. 586, 52, 42 P.. C.S.A. 15928. The
attorney-client privilege appli.. to communication. only if I
(1) the ....rted holder of the privilege i. or
-
Petition for Special Relief, par.gr.ph 8.
8.e Order of Court, December 12, 1994.
,
3
RO. 94-60S4 CIVIL TSRM
.ought to become a client, (2) the ~er.on to
whom the communication wa. ade (a) i. a
umber of a bar of a court, or hie .ubordinate
and (b) in connection with thi. communication
i. acting a. a lawyer, (3) the communication
relate. to a fact of which the attorney wa.
informed (a) by hie client (b) without the
pre.ence of .tranger. (c) for the purpo.e of
.ecuring primarily either (i) an opinion on
law or (ii) legal .ervice. or (iii) a..i.tance
in .ou legal proceeding, and not (d) for the
purpo.e of committing a crime or tort, and (4)
the privilege had been (a) claimed and (b) not
waived by the client.
Harian B.nk v. Lawrence Voluck A..ociat.., Inc., 26 D. , C.3d 48,
S1 (Philadelphia County 1982).
Th. doctrine of attorney-client privilege, however, i. .ubject
to .everal well-e.tabli.hed exception., one of which i. p.rtinent
herein. Lout..nbi..r v. Doddo, 436 Pa. S12, S18, 260 A.2d 74S, 748
(1970). "A communication betw.en attorney and client iu not
privileged if it take. place in the pre.ence of a third per.on or
of the adver.e party." Tracey v. Trac.y, 377 Pa. 420, 424, 10S
A.2d 122, 125 (19S4).
In addition, the u.e of parol evidence a. to the intent of
partie. to a marital .ettlement agreement where the interpretation
of an ambiguity i. involved i. often .anctioned. Se. Creek. v.
Creek., 422 Pa. Super. 432, 619 A.2d 7S4 (1993).
When con.truinq agreement. involving
olear and unaabiguou. terme, thi. Court need
only ex..ine the writing it.elf to give effect
to the partie. under.tanding. The court mu.t
con.true the contraot only a. written and ..y
not modify the plain _aning of th. word.
under the gui.. of interpretation. When the
4
NO. 94-6054 CIVIL TIRM
term. of a writt.n contract are clear, [a)
Court will not re-write it or give it a
oonntruction in conflict with the accepted and
plain meaning of th. language u.ed.
Conver.ely, when the language i. aabiguou. and
the intention of the partie. cannot b.
rea.onably a.c.rtained from the language of
the writing don., the parol evidenc. rule
do.. not apply to the adaie.ion of oral
te.timony to .how both the intent of the
part,i... and the ciroum.tanc.. att.nding the
ex.cution of th. contract.
Id. at 435, 619 A.2d at 756 (1993) (oitation.omitt.d).
In "It.te of McKenn., 340 Pa. Super. 105, 489 A.2d 862 (1985),
the t..timony of th. .crivener of a will wa. p.rmitted to t.etify
with r.gard to the intent of the te.tator.
Where language of the te.tator i. unimpeached,
but equivocal or ambiguou., declaration. of
the te.tator'. intent are admi..ible for
purpo.e. of interpretation. Declaration.
alleged to have been _de by the te.tator to
the .crivener of hi. will are not admi..ibl.
to alter or add to the term. of a will wh.r. a
will i. clear and unambiguou.. If th. will i.
aabiguou. on it. face, the court may look to
extrin.ic evidence to aid in int.rpretation.
Id. at 114-15, 489 A.2d at 867 (1985).
Since both partie. were pre.ent with M.. Morrow on two
occa.ion. with regard to the Agreement, any communication. betw.en
MI. Morrow and Plaintiff at tho.e time. oan not be oonddered
privileged. In addition, the provieion. in paragraph. five and dx
of the Agreement are arguably ambiguou.. Therefor., MI. Morrow
will be per1llitted to te.tUy a. to what wa. .aid on the.. two
ocoa.ion. with regard to her under.tanding of the intent of the
5
o
"'"
JMDU 'l'O 1I1:'l'II1I....
ro. -- .I~~MT~..I..T%TIOMW. D1:..e'f f!aOI.
h~- H. Heidig ., 1.,
.0. 'l'IDI D...unAHTI R.SPoHDaHT
Lany O. Neidig 25 30
limO 'l'O .101%.%'1'.
._'f%'f:lODR'. .nt.lIf 110. u..~tm . nM'I'l"l'IlD
1 . Ag~.__t 10 25
2
~
"..
TBI COURTI 'l'bi. i. th. tt.e en4 plaoe !o~ a
b.a~iDg OD the .1.iDtif!'. .etitiOD !o~ Ipeoi.l ..li.!. ~.
a.oh en4 ~. HoCalab, do you wi.h to It.te your po.itiOD.,
eD4 tbeD we'll h..r evideDoe.
MIl. BACH I Go04 dtenlOOD, YOUI' BODor. My
D&a8 1. J.... ..ob !or the p.titioDe~, x.ren .ei4ig.
....Dti.lly, our po.it10D i. that tbe p.~ti.. .Dt.~.4 1Dto ·
po.tDupt1.1 .g~eeaeDt in May o! 1i,2, en4 . pe~tiDent pa~t
of tb.t .g~eD8Dt 0.1184 fo~ the bu.ben4 to p.y en4 be
.olely liable !or th. fil'.t 4IId .eo0D4 aortg.ge. ..0aU.. it
1. a OODt~.Ot exeout.4 by both p.l'ti.., w. were a.kiDg tb.
court to 4et.~D. tb. .ffio.cy of that p.rtioul.r portiOD
o! tbe oODtl'aOt 4..11Dg witb the qu..tioD o! wbetb.~ O~ Dot
tbe bu.ben4 i. .ol.ly liabl. !0Z' p.ymeDt of tb. fir.t en4
.eooD4 ao~tgag..
ft. COUR'I'I All dgbt. H~. IlaCaleb?
MIl. IlaCAL..1 Your BODO~, 1 .gl'.. wi tb th.
~epr..4IItatioD tbat the pa~ti8. did .Dt.r iDto a p~op.~ty
.ettl"'Dt en4 ou.tody .gr....Dt d.te4 May 1', lii2, en4 1
believ. tb.t'. tbe .... 400u.eDt tbat'. b..D attaobed to tb.
petitiOD bel'.. 1 tbiDk tbel'. .r. tWO revi.ioD. iDvolv.d 1D
tbe ccmt~act, _4 ODe 1. UD4.Z' '.I'.graph 5, whioh 00Dta1D.4
tb. laogu.g. oite4 by H~. aach cODo.rDiDg tb. liability for
. fil'.t aol'tgage .D4 a l.oOD4 aortgag. obl1g.t10D OD th.
I'eal ..tate.
3
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~
The .econd pa~t of the doauaent that'. at
iaaue here today i. in .arag~aph 6, in whiah it p~OYidea
that the pa~tie. ag~.e that the ..thod for deteraining the
value and di.tribution of th. value of th. hou.e .hall be
deaided if and when a divo~ce action i. filed by either
party. Ou~ poaition, No.1, ia that tho.e i.au.a a~e to be
~eaolved in an equitable di.tribution proo..ding, not in a
aatte~ for .pecial ~.lief. w. don't b.1iev. thi. fall.
within the ambit of the atatutory proviaion for ap.oial
~eli.f.
Seoondly, it would be our poaition that if
the Cou~t i. going to hear the iaaue today, that th.~. i. an
aabiguity in the contract which needa to b. ~eaolved.
Again, I think that that ambiguity ahould b. r.aolved, in
the firat inatanoe, in an equitabl. di.tribution proa.eding.
But if Your Honor ov.r~lea me on that i.aue, then I think
that that'. .~thing that you 8Uat a44re.. and r..olv.
after the te.ti~ny haa be.n preaented her.in.
In any evant, Yaur Hono~, I do not think that
the ..titioner ia, at thia ti.., entitled to an award of
approxiaate intereat of the bouae or a dollar .-aunt for the
inter.at becauae w. haven't gotten that far. The agr...-nt
.peaifiaally providea that that'a to b. don.. Again, I
a~t to you that that part of it ha. to b. done in an
equitable diatribution foru..
4
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~
TIm COURT. What i. your po.iUoll a. to Mr.
.acb'. cOlltentioll tbat tbe Defelldant i. liable fo~ tb.
enti~e amount of tb. DIO~tgage tbat'. 011 tb. p~.-i.e. .. well
a. tb. boae equity loen?
MR. McCALRB. ".11, tbe .gr....llt .ay. tbe
bu.~8D4 agree. to pay and i. .olely liable for tbe.e
obligation., You~ BOllor, an4 % tbillk that ba. to ~e
illte~~ete4 ill ligbt of tbe oi~cuaatallce. that exi.t.d at
tbe ti.. tbi. cOllt~acJt wa. .ipe4, AIld _, ~e quite p~epared
to p~e.ellt te.tiDlOIlY on tbat i..ue.
But at tbat time, tbe pa~ti.. did not
oOllt.-pl.te 4ivo~ce. They did Ilot cOllt.-plate liquidating
tb. p~ope~ty. The bu.balld w.. re.idillg ill tbe prope~ty.
The wife wa. Ilot. There w.. oonc.l'Il ove~ wbetb.~ O~ Ilot tb.
IIiOlltbly lIiO~tgage paymellt. would b. _4e wbile be wa. living
ill tbe p~ope~ty, an4 .0 be ag~eed that be would _ke tbe
IIiOIltbly lIiO~tgage paya_U. But b. un4e~.tood that that'.
what be _. ag~..illg to, tbat he would _ke tbe ~tbly
payaent. .. and wben they c_. du. ~ecau.f1 be wa. livillg
there and illtan4ed to contillue livillg tb.~e. Tbe~e w.. no
thought given to .elling the p~ope~ty o~ AIlytbing like tbat,
8D4 tbe pa~tie. Ileve~ a4d~e...4 tb.t i..u. beoau.e tbey
Ileve~ cont.-plated that i..u..
I would poillt out tb.t tb. oOllt~ect _.
~itten by wife'. atto~lley, AIle!, tbe~efo~., in tbe eveat of
5
~
~
aD "ig\lity, .u.t be con.tn.d lIIO.t favo~ab1y in tb. favo~
. of -.y cU8Dt, wbo did not have a hand :iD drafting tbe
contract, and mu.t b. con.tned lIIO.t .trong1y again.t tb.
'etition.l:', wbo.. attorney did 4~aft the contl:'act.
Th.~. wa. anutb.~ :ie.u. that had b.8D brougbt
up in chaabe:n tbat I would Uke to get on tb. :ncord today.
If Your Honor i. going to b..~ te.tilllOny of wbat tbe pal:'ti..
intended by tbi. agl:'._ant and wbat tb.y _ant by it, it
.... to .. that we ought to have tbe te.tilllOny of th.
.c~iven.r of thi. document, who i. the on., afte~ all, who
cho.. tbe pa~tiou1al:' word. invo1v.d. '.rhap. hel:'
wadeZ'.t8Dding or bel:' intention a. to what .be me8Dt wou14 be
tbe ao.t .n1ight.ning of any of the witn..... that you b.al:'.
We a.1l that .h. b. oa11.4 to te.tify and to a44l:'e.. th.
i..u. of what wa. int.nd.d by the 1ang\lag. that'. in
que.tion h.re.
Th. i..u. ha. be.n ~ai..d a. to wb.tb.1:' 01:'
not 'etition.1:' ne.d. to waive bel:' attorney-client pl:'ivilege.
I would .utlait tbat by putting thi. dOCUIHnt in i..u., ..
.he ha. 40n. by filing th. petition, .he ha. waived that
.ttorney-client pl:'lvil.g..
TH. C01B.TI Do you bave any autbority fol:'
tbat pI:'Gpo.ition?
11II. NcCAL..1 1 dl4ft' t real he that - _I:'e
101ng to get into that i..u. today 01:' % would bav. tZ'ied to
.
~
~
ooae witb autbo~ity. I OaD only analogi.e to a to~t eotion,
You~ Hono~. When .omeone file. .uit fo~ p.~.onal inju~ie.,
~be Defen48Dt in that .uit -- the filing of the .uit, it"
~ UDder.taDding, i. a waiv.r of tha dooto~-patient
p~ivilege, .0 that the Defendant in tbat .uit i. giv.n
aooe.., through .ubpoena or the di.oove~ prooe.., to the
dootor'. ~ecord. and to tbe dootor'. .tat...nt. aDd to the
patient'. .tatement. to tbe dooto~ tbat w.r. made du~ing the
cour.e of treatment of tho.. injurie.. I would aDalogi..
that to thi. .ituation.
ftl COUJlTI All right. ThaD~ you. AQd you
are p~opo.ing to aall the .oriv.n.r a. yourwitne.., I ta~e
it, 1Ir. MoCaleb?
MR. NoCALRBI Wall, if tbey won't call b.r, I
would oall her a. ~ witne.., y...
ft. COUJlTI All rigbt. Mr. Bach, do you W8Dt
to call your firlt witne..?
MR. BACH I Ya.. We call Kar.n Neidig, th.
..ti t:ioner.
1fb.raupon,
IWlIDI H. nIDIQ
baving been duly .worn, te.tified a. follow. I
Dl.RCT RXAMIHATION
aY MR. DCIII
Q
Good afternoon. Ny n... i. ~.... .aob. 1
7
,..,.
I'!'"
~.p~e.enc Ka~en Neidig. Would you .cace ol.a~ly you~ lull
n'" aDd a44~e.. lor the ~eoo~d.
A It'. Ka~en R. Neidig. 105 Ho~th St. JohD'.
Road. CUIP B:ill.
Do you live alone?
No. My two ch:ild~eD 1:1. ve wi th me.
What a~e thei~ n.... aDd age.?
Kevin i. eigbt.en and Kri.tina i. lilteeD.
Are you married p~e.ently?
Ye..
Are you .eparated p~e.entlY?
Ye..
APproximately when did you and you~ hu.beDd
Q
A
Q
A
Q
A
Q
A
Q
.epa~ate?
A
Q
A
Q
togecher?
A
Q
A
lD .rt hou...
Q
40 you ~eoall
It wa. Maroh l.t 01 '92.
Wher. doe. your hu.baDd live, U you MOW?
.e live. at 1916 .i.her aoa4. MeohaDio.bu~g.
11 that a p~ope~ty you aDd your bu.beDd OWD
Ye.. it i..
Who do.. he uv. with, U you MOW?
.. liv.. with hi. girllrie..d aDd two oh114raD
At the ti.. you aDd your bu.beDd .eparated,
what t.b. IIOrtgage. were agaln.t that prope~ty?
.
,.,
n
A Well, when I left, it va. a~ound 42 oso
43,000. Afteso I left, we did the agreeaeat on the one h~
equity 10eD.
Q The total .-aunt of the 8O~tgag.. at
.&pasoation would be what .-aunt?
A At .epa~ation?
Q At or about.
A ~ound forty-five.
Q x. that with the fir.t 8O~tgage and th.
.eo0D4?
A No. The .eoond wa. 12,000, .0 a44 anotheso --
Q Twelve thou.and.
A __ onto about forty-thre.. About fUty-five.
Q About fifty-five?
A VII-hu..
Q That'. your reooll.otion a. to th. .-ouDt of
8O~tlage. when you we~e .eparated?
A That'. oor~.ot.
Q In May of 1'92, were you repre.ented by a
lawye~?
AYe..
Q What wa. that lawyer'. n...?
A aathy Morrow.
Q Did thaI". c~ a ti.. when ... 1Io~IrOW
plr.,.~ed wbat'. kDOWD a. .. po.tnuptial aglre..-at?
,
! .',
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~
A That'. Gorr.ot.
Q ADd that .gr....nt w.. .ttaoh.d to tb.
origin.l p.tition that w. fil.d in your b.half in oourt
tocSay?
A UIII-hum.
Q I'm going to diroct you~ .tt.ntion, Mr..
..idig, to P.ge . of tb.t .gr....nt.
A UIII-hum.
TB. COURT I Can w. _ka tb:ie .gr._t eD
exhibit .0 w. have it for the r.oord.
MR. BACH I Y.., Your Honor, w. can _k. that
.. an exbibi t .
TB. COURT I W.'ll t.k. . _nt and bav. it
aark.d a. P.titionar'. Rxhibit 1.
(Wb.reupon, 'atition.r'. .xhibit No.1 w..
aarke4 for id.ntification.)
BY MR. BACH I
Q Mr.. Neidig, I bali.v. tb. qu..tion w.., did
there 0011. a point in ti_ wbeD you and your bu.band .ip.d
. po.tnupti.l .gr...-nt?
A . Th.t'. rigbt.
Q Th.t po.tnupti.l .gr._t i. tba ....
.gr....nt th.t w. have .tt.cbad to tbe petition an4 ..rke4
hare .. ..t1tion.r'. Rxhib1t No.1, 1. it not?
A That'. it.
10
Q
""
Q CD the l..t p.g., I'. going to ..k you to
identify i. that your Bign.tur.?
A Th.t'. DIY .ign.tu~e.
.... McCAL.Ba DieS you ..y on the la.t p.g.,
Mr. B.ch?
.... BACHa Next-to-the-l.et p.ga, I ..ut to
..y -- or thireS-from-th.-l..t p.ge.
... . McCAL.BI Ok.y.
BY lilt. BACH a
Q I. that the .xhibit that you ud you~ hu.bud
.ign.d befor. . not.ry rapublio?
Y... We were tog.ther when w. .igD.d th.t.
You ud your hu.b.nd went togeth.r whu you
A
Q
Bignad the t?
A
Q
A
Q
by an attol'1ley?
A
Right.
Who va. r.pr..enting you?
..t. Morrow, ..thy Morrow.
Do you rac.ll if your hu.bud w.. repre.uted
No. S. w.. .dvi..d to by DIY l.wyer, ud h.
..id th.t'. not n.o....ry.
Q Now, a. to the portion of th. .gr....nt th.t
t.lk. about p.yaent of the aortgage, I'. going to dir.ct
your .tteDtion to wh.t App.ar. to ba .ag. 4, ..ragraph No.
2, end ..Il you to r..d iDto the raoord that p.~.gTapb,
11
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o
pl.....
A au.band agr... to ~.y and b. .ol.ly liabl.
for the ob1:igation du. r.MCV, the h~. .quity lOAD eDd
Choic./Vi.. oon.oli4etion loan and fo~ the mo~tgag. on the
..~it.l r..id.nce du. and owing to rNBA Unit.d St.t..
D.partment of Agriculture.
Q How, the two DIOrtgag.. r.f.rred to in that
par.g~.ph, do th.y repr..ent a fir.t ADd . .eoond mortgage
on YOUI' hOlUl?
A
Q
Right.
I want to direot your .ttention to the v.ry
nu:t p.ragraph on the .... p.g. ADeI ..k you to re.d into the
reoo~d the very next paragraph, b.ginning with the word
wU..
A Okay. Wife agre.. to p.y and. b. aol.ly
Uabl. for th. debt on the DAJ'Cli .ign.tur. 10eD ADd the
Bon-Ton ohargtl .ooount.
Q How, what w.. the DA'CU .ignatur. lo.n
beleDo. .t tb. ti_ you ligned the .g~e_t?
A Roughly, it wa. like 2,000, which I had paid
off.
Q That h.. b.en paid in full .ino. th.n?
A Y... I kept .11 of ~ .gr....nt..
Q How, the n.xt thing w. r.ferred to in the
nut pasoagrapb wa. a Bon-Ton obasoge aooount. aav. you beeD
12
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payiDg OIl tat?
A All alO1:\g.
Q What h tb. balance 40WD to now?
A About 200.
Q What wa. tb. balanoe at tbe ti.. of
.aparation?
A I'm not .ur.. It wa. olo.e to 300, but I u..
it on and off.
Q 80, it'. aD ongoing obarg.?
A Rigbt, right, but I k.ep paying on it.
Q How, in regard to tbe docuaent, tb.
egr...-nt, wbat .a. your under.teDding a. to tbe..
.ortge..." a. to what would occu~ if the bou.e w.re .old?
TKa COURTI May I 1nterrupt witb . que.tion.
WhaD you. .ay the.e .ortga...., i. the oblig.tion due DUCO a
lieD OD tbe hoae?
AYe..
TB. COUJ,T I It il1 ADd tat wa. ·
c~in.tion of two otbe~ loan.'
A Ho, one other loan.
T1D COUJ,T I The two oth.~ lOaD. b.iDg the
h~ equity loan and the Choice/Vi.a con.olidatiOD 10..?
A That'. 811 ODe. DAlCO took oare of that.
'l'bat we. 8U on..
fta COUJ,TI It we. con.011"-ted7
13
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'"
o
A aight.
'1'JUI COUllT. ADd that ie . li"" it'. Dot ~U.t
· debt, it'. . lieD on the h~?
AYe..
BY NIt. BACH.
o POl' the record, th. DAPCU Oblig.t1oa that the
~u4g. r.f.rr.d to, that ha. b.ea paid by you in full, i.
that right?
TB. COUJlTI No, I don't thiDk .0.
A Not on the hom. equity lOaD.
MR. BACH. The .ilJD.ture lOAD.
TB. COUllT. The agreelll8Dt .ay., hu.b&DeS
agr... to pay ADd b. .olely liable for the Obligat1oD due
DAPCU (th. hoae equity lOAD ead Choioe/V1ea con.olidation
lOaD). Ny que.tiOD ie, b that obligatioD wh10h 1. due
DAPCU a lien on the haae?
A Y...
BY NIt. BACH I
o What w.. YOUI' UDd.r.tADdiDg of tbi. agr.eaaat
a. it relat.d to tbe paragrapb addre..ing tb. .ortgag.?
What did you under.tead ... going on wbeD you .ilJD.cS that
.gr....nt?
A Well, I under.tand tbat that w.. our
.gr.....t. X.te Morrow went ov.r it with u., and it va. IIY
UDd.r.tand1ng tbat b. pay. for the b~ equity lOaD &DeS b.'.
It
,.,
"
.olel, liabl. for the ~rtgag.., and then I get half of the
bou.e.
Q I. that half of the value of the hou.e .fter
payaent of the fir.t aDd ..cond aortgag.?
A No. It'. II)' under.tanding I dicID't have to
worry about paying. K. wa. .oltlly liable for that, half of
"5,000.00.
Q And that'. the valu. that you b.li.ve the
bou.e i. worth today?
Right. It wa. apprai.ed.
You believe that you would b. aDtitled to
A
Q
.2,500?
A
Q
b..r tbi. G....
today?
A
lx.oUy.
Now, JudSl'. Oler ba. b.e a.ked to .it aDd
What are you r.qu..ting Judge Ol.r to do
W.ll, for the bou.. to be .old i...di.tely
aDd to pre.ent .. witb one half of the v.lue of the hou..,
whiob we agre.d on.
Q I. there . dollar .-aunt for that?
A It'. 42,500.
101. lACK I Thank you. I have notbing
furtbel'.
'I'll. C011llTI 'orty.two tbou..nd five hundred
would be b.lf of the value of tbe bou.e, i. tb.t rigbt?
15
~
fI"\
AYe..
MR. BACH. Half of the p~..ent ..~k.t value
of the hou.e, You~ Hono~.
TH. COURT. When you .ay that'. ag~eed upon,
wbe~. i. that figu~e ag~eed upon?
MR. BACH. Well, I'll b~ing that up.
BY MR. BACH I
Q The '85,000.00 figure that w. ju.t ~ef.~~.d
to, how did you arrive at that figu~e?
A The hou.e wa. apprai.ed, eDd it wa. appX'ai.ed
at 85,000.
Q That'. an app~ai.al you~ hu.band .ent to you~
attorney, i. that ~ight?
A Correat.
MR. BACH I I hav. nothing fu~ther.
TH. COURTI If I aight a.k one que.tion. 80,
you'~e .aying that you~ under.tanding of the ag~e...nt wa.
that you would be paid '42,500.00 and that Mr. ".idig would
al.o pay '55,000.00 to the financial in.titution. that have
lien. on th. hou.e, i. that ~igbt?
A That'. what he agreed tbat be'd do.
TH. COua'l'l All rigbt. So, b. would get --
if the bou.. i. only wo~tb 85,000, h. would aotually have a
10.. with ~egard to the hou..?
A I .uppo.e, not unle.. h. get. ~re for the
11
1.'1\
"...
beN...
TIm COUJTI I .... Okay. 11I'. lIaCaleb?
Ca088-IXAIIIHATION
.Y .... IlaCAL'.1
a MI'.. Neidig, 40 you have that agl'.~t in
fl'ODt of you?
A Y.., I do.
a I would like to dil'.ct you~ att.ntion to
'al'ag~aph , of that .gr....nt, pl.....
A 'll'a-hUID.
a P.I'.gl'.ph 6 ba. . h..ding on it, hON.?
A Th.t'. corl'.at.
a Would you I'..d into the I'.col'd the ..cond
01' actually the third full p.l'.gr.ph, b.ginning with the
pa~t:ie. .gl'...
A Th. p.rtie. ag~.. th.t the ..thod fol'
d.t.~ning the v.lu. and di.tribution of th. v.lue of the
hou.. .hall b. decid.d if and wh.n . divorc. .ation i. fil.d
by .ith.1' p.l'ty.
a Now, .1'. you t.lling u. today, i. it youI'
UDd.l'.tanding that th.t pal'agl'.ph ..y. you al'. to g.t on.
half of the fail' "I'ket value of the hou..?
A Right.
Q That i. what tut ..y. to you?
A W.U, y...
17
o
o
Q I. tb.~. aDY plaa. .1.. in tb1. ag~....nt
wb.~. it .ay. you .~. to get OD. b.lf of tb. value of tb.
bou..?
A W.ll, on tbat .tat...nt tb.~., wb.~. it ..y.
b. i. .ol.ly liable !o~ tbo..' tbat ..an. tb. ..... 'l'bat'.
wbat we agr..d upon.
Q Now, at tb. t1.. of tbi. .g~....nt, you'~.
tb. one tb.t ..l.ct.d K.tby Morrow to ~. tb. attorney in
tb1. ..tt.~, i. tbat aorr.ot?
A U1a-bWll.
Q You paid M.. Morrow for her ..l'Via.. in
d~awing up tb1. .gr....nt, 1. tb.t oorr.at?
A Th.t'. ao~r.at.
Q Did you .nd Larry go aDd u..t witb b.~ to
talk about wb.t tb. two of you b.d .gr.ed upon .. f.r ..
p~op.rty d1.t~ibut10n i. cona.rn.d?
A W. w.nt tog.tb.r in tb. .... v.biale.
Q You ..t tb.r. 1n b.r off1a. tog.tber aDd
d1.ou...d the v.riou. prov1.ion., i. tb.t ~igbt?
A We a.rt.inly did.
Q You told u. b.for. that you b.d .epar.ted on
Marob the 1.t of 19921
A Y...
Q nat'. pout two aDd . half IIOIItb. ~.fo...
tbi. ..r....nt va. .igned, i. that ..i.bt?
11
o
o
A U.-bum.
Q Now, at tbat partioular point, tbere badn't
beeD eDY divorce aotion filed, bad tbere?
A No.
o At tbat point, tbe two of you badn't decided
tbat you we~e going to get divo~o.d at that time, bad you?
A Right.
o Th. bou.e tbat we're talking abou~ i. tb.
bou.e where you and Larry lived tog.th.~ before you
..,arat.d in Marcb of 1"2, i. tbat rigbt?
A W. built togeth.r.
o You built tbe hou.. tog.th.~. And tbe
ooa.truction wa. finanoed by tbe loan f~om tbe 'Armer. Boae
Adaini.tration, i. tbat rigbt?
A That'. correct.
o That wa. tb. fir.t mortgage on the bou.e?
A (Witne." nod. affirmetiv.ly.)
o Correot?
A Co~reot.
o You bav. to verbali.. you~ an...~. .0 tbe
GOU~t ~.,o~ter oan r.port it, okay? And at .088 point,
tbe~e wa. a boae .quity loan on the hou.e, i. that rigbt?
A After I 1.ft.
o Afte~ you left, th.re wa. a hoae .quity loan?
A That'. correct.
1.
o
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Q The two of you bon'owed IIOlley foZ' .OIM
pVol'po.., right?
A Right.
Q And the~e wa. al.o an ObligatiOll fo~
Choioe/Vi.a, i. that right?
A UIII-hwa.
Q At.ome point. tho.e two obligation. 0'"
togetheZ' at D~CU, Z'ight?
A CoZ'Z'eot.
Q And D~CU had a h~e equity loan than?
A bactly.
Q So, it wa. rarmer. Boae Adaini.tZ'atioll fi~.t,
and DArCO haa the .econd mortgage, i. that right?
A That'. Z'ight.
Q Th. D~CU obligation wip.d out the eaZ'lieZ'
h.. equity loan, right? You paid aU the hOlM equity 10eD
out of the D~CO loan, right?
A No. That wa. the hoae equity loan.
Q You paid off the Choice/Vi.a obligatioll out
of th. ~CU loan?
A Y...
Q 80 that after you w.Z'a filli.h.d with thi.,
th.Z'. were ju.t tho.e two obligation. 011 the hou.e, .a~Z'.
BOIM and DArCU, coZ'Z'aot?
AYe..
20
a
~
Q You told u. before that you e.ti..ted that
wbeD you and Ler~ .eparated, the total Obligetioa oa tho.e
two .o~tgage. wa. about '55,000.00, .. I right?
A That'. right.
Q Ollay. Then there _. e .eparet. DAl'CU loan,
a ~CO .ignatur. loan, i. that right?
AYe..
Q That'. th. on. that had a balanCle of about
'2,000.00 whenever you l.ft, i. that right?
A That we. ~ obligation.
Q That wa. your obligation. You paid that off,
~ight?
AYe..
Q In aonthly payaent. over e period of t1ae?
A Right.
Q That'. now down to .ero?
A Right.
Q Xt do..n't exiat anyaore?
A Nop. .
Q The Bon-Ton aooount i. a revolviDg aOClOUDt?
A Y.ab. It'. a aharg..
Q 80, the ba1anoe tbat'. on there, '200.00,
prObably it 40e.n't bav. anything to do witb what we. tbe~e
wb_ever you left in NaI'Clh of ' t2, doe. it?
A 'I'Obably not. I bad that part paid, ye..
21
~
"
o You p.id it off?
A Oh, yeah. Oh, .url.
o 80, you ended up p.ying off, if X'm oorr.ot,
'2,300.00 wo~th of oblig.tion., am X right?
A Th.t'. wh.t X agreed on.
o ADd hi. oblig.tion. w.r. '55,000.00, i. th.t
right?
A That'. correct.
o Would you turn to the fir.t p.ge of that
.greeaent, plea.., Mr.. Neidig. Throughout thi. dooument,
ther. a~e .om. handwritten not.tion. on thi. .gr....nt, .re
ther. not? Look in the very firlt par.gr.ph. Ar.n't th.re
.aae handwritten initi.l. ther.?
A Right. They were ai.take..
o A. . matter of faot, your .urn.... were
ai..pelled in thi. doouaent, right?
A UIl-hua.
o IIr.. Morrow aillpll1ecS the .urn....?
AYe..
o 80, they had to be initi.le4 --
A Right.
o -- the ohang.. throughout, i. that right?
A To aake it legal, ye..
o ADd over OD Page ., wb.re we we... ...ading
'roa b.'o..e, let'. go to tb. parlgrapb that deal. witb being
22
~
o
.ol.ly liaJ:Ile fo~ the llO~tgag... Ther.'..OIUI haD4ws'iting
in that pa~agraph, i. there not?
A Right.
Q A. a matter of faot. the fir.t IlOrtgag. on
the hou.. _. initially ~itten a. th. .int Bank and Tru.t
c~any of Mechanio.burg, i.n't that right?
A tIIII- h\IDI.
Q That wa. .triok.n out, and, in han4ws'iting,
it wa. written FKRA, U.S. Department of Agrioultur.. Thera
never wa. a IlOrtgage to th. 'ir.t Bank and Tru.t, we. there?
A No. She mi.und.r.tood.
Q That wa. a mi.take, right?
A Yeah, right.
Q When you go down to Paragraph " right above
wh.~e you read .arlier, there i. a handwritt.n .antenae,
.wi-.ing pool on prop.rty i. owned by Viaki Benne..ey. That
wa. al.o put in at th. ti.. thi. thing wa. .ign.d, right?
A Right.
Q Wa. that a .:ieundeutanding by.... IIorrow at
that ti.., or wa. that .0000thing that happened afterward.?
A Ihe didn't -- w. did ..ntion that to he~.
Ih. didn't put it in, but w. put it in. And .he .aid
wbatever you put in, initial it, AIId it'. legit. linoe
then, he tore the pool down and .old it.
a Now, baak at the ti_ that you and Larl'Y
33
t)
fI\
ent.~ed into thi. cont~act, you told .e befo~. that you
"~eD' t thiDll:ing about divol'oe at that point, i. that ~ight?
A No.
a Larry wanted to .tay in the hou.e, dicln't he?
A I didn't want to l.ave either.
a Noneth.le.., you did leav.. La~ry wanted to
.tay in th. hou.e, i.n't that I'ight?
A UlIl-hwa.
a Wa. th.l'e any talk then about ..lling the
hou..? Wel'e you planning to .ell tDe hou.e and divide it
off at that point?
A We dicln't di.cu.. that.
.... ICccALI.1 No fUl'thel' que.tion..
.... BACH I Nothing fUl'thel', You~ BonoI'.
TRI COUllTI Okay. You _y .up down. Thank
you. ICI'. .ach, enything fUl'ther?
.... BACBI No. We I'e.t at thi. ti...
TRR COUllTI Do you aove for the a4a1..ion of
'etitionel". Kxhibit 17
.... BACH I
TRI COUllT I
Y.., we would, Your BonoI'.
I. th.l'e any objection, IC~.
MaC.lab?
.... ICe CALI. I No objection, Your Honor.
TRI COUllTI Petition.I". Ixhibit 1 i.
a.itte4.
:u
o
"'"
(1fbe~.upOD, ..t:it:ioDer'. lIxhibit No.1...
ada:in.d. )
,.. COURT. Mr. MaCaleb?
MIl. McCAL... We aall 1Iz'. N.idig.
Wher.upoD,
LAItIly O. DIDIO
haViDg b..D duly .worn, te.tifi.d a. follow..
DIR.CT .XAMINATIOH
BY .... MoCALR..
o Would you .tat. your D..e and addr...,
pl.... .
A Larry N.idig, 19l~ .iah.r Road,
MeobaDio.burg.
o That prop.rty, that a4dr... that you ju.t
gave u., ia that the hou.e that w.'ve b..D talkiDg about
he~. thi. afternooD?
A y...
o Juat .0 the reoord i. ol..r, a~. you the
hu.band of the ~c ,n who ju.t te.tified, .a~en Neidig?
A y...
o Mr. Neidig, I'. going to .how you wh.t baa
b.en aarked a. 'etitioD.r'. .xhibit No.1. I want to .how
you, .peoifioally, a page that ha. .ign.ture. OD it. I.
your .ignatur. OD that pag., Mr. Neidig?
A Y...
25
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~
up.
Q How, va. tbue di.ou..ioa b.tvaeD you and .
youl' wife about dividing up vadou. :it... of pl'ope~ty at
tbh ti..?
AYe..
Q Did you meet witb M~.. MoI'I'OW to ~elat. to
bel' what you and your wife bad agl'eed to?
A Y...
Q How many ti_. did you m.et witb MI'.. 1Io~~OW?
A Twice.
Q Wa. it tb. .eoond time that you .igned tb.
doOUII8Dt?
A
Q
got tbe bou.e?
A
Q
Y.ab.
How, a. far a. tbe bou.e va. ooaoel'n.4, who
I .tayed in th. bou.e.
Wa. anytbing done to obange tbe title co tbe
beN.e?
A 110.
Q We've bea~d teatiaooy tbat tbel'e wel'. two
~~tgage. on the bou.e at tbat ti... I. that t~e?
A Yeab.
Q I tak. it, tben, tbat botb of tbe.e
Obligatioa. bad payaenta involved?
AYe..
37
")
o
Q Who bec... n.poD.ible fol' _1I:.Lng tho.e
paJII8DU'
A 1 tooll: I'e.pon.ibility.
Q Why wa. that?
A ."c.u.. IIhe dicSD't waot to be re.pool1bl. if
1 d14o't p.y fol' it. ID oth.1' wol'd., .he waoted en
.gl'....Dt that if 1 quit p.yiog OIl thea, 1 coulcSD't it
coul4o' t SlO baoll OD h.l'. It w.. my oblig.tioD to uke tba
p.yaeDt., aoeS X .gr..eS to th.t. 1 .aid, DO pl'obl.. witb
th.t.
Q At that time, cUeS you or youI' wife have aDY
plao. to .ell the hou.. iD the future?
A No, uDb-unb.
Q At tb.t ti.e, wa. there eny eSiMou..ioo about
wbat would h.ppen to the.e .ortgage. if th. hou.e were lold
1D th. future?
A No. We had no plene on divorcing .t th.t
ti_.
Q You h.d no plao. for divorce?
A No. 8he ju.t waoted to ..p.rate end to live
OIl OUI' own foS' a while.
Q Were the two of you iDvolved io oounl.ling at
that U_?
A
Q
Yeah.
.ADd bow 10Dg did tbat h.t?
21
".
o
A Until x coulcID' t affo~d it. I gue.. I weIlt
to about two o~ thr.. ....ion..
a TWo or thr.. ....ion. of coun..ling?
A X'm not .ur. .xactly.
a At that time that you aneS you~ wU. Unt
.aparated, wa. there any ti.. liait on how long you we~.
gOing to liv. apart?
A She .aieS at fir.t like thr.. ~nth.. Then
th~.. aonth. w.nt by, aneS .h. .aieS I'. going to take a
little long.~, maybe .ix month.. Then .ix ~nth. went by,
aneS .h. wa.n't reac:ly y.t. Th. tim. l:im:it ju.t kept getting
long.r and long.r.
a When dieS it b.cOll8 appareDt to you that you
we~. not going to get baok togeth.~?
A About a y.a~.
a A year afte~ you ..parat.eS?
A Yeah.
a That would b. Karoh of 1"3?
A Around ther., probably a little later.
a At tbat ti.., dieS you and you~ wif. talk
Uout what wa. going to b. done with the hou..?
A No, UJIh-unh.
a Wa. it your uneSer.taneSing that in thi.
.,~e-.ent your wife got on. half of the hou..?
A Ny underetandiDg wa. wh.n it wa. .old .h.'d
2t
""
"'"
get half of the p~ofit, o~ whateve~ you call it, afte~ the
ao~tgage wa. paid ancl eve~thing.
o Afte~ the mo~tgage. we~. paid?
A orbe ao~tgage. wer. paid, and tb.n we would
.pUt tbe equity. Or:if:t wanted to buy tbe bou.e, I would
pay b.~ half out, which :ie what X we. trying to clo.
o Half of tbe equity?
A Yeah.
MR. HcCALRB. No furtbe~ que.tion..
TB. COURT I Nr. Bach?
CR088-SXANINATION
BY .... BACH I
o M~. Neidig, what i. your ecluoational
backg~oWld?
A High .cbool, twelfth g~ade.
o Can you ~e.d tbe .ngli.h language?
A Y...
Q Do you Wlde~.t.and wbat you read?
AYe..
Q orbe docuaant befo~e you, Imown a. tbe
po.tnuptial ag~._nt, contain. you~ .ipatur.. Can J
ooncl~de that you r.ad and Wlcle~.tood that doouaent?
A Yeab, I Wlde~.tood it.
a You've bad you~ hou.e apprai..d recantly?
A Y.ah.
30
~
~
Q What b the app~ai.a1 value of the haae'
A .ighty-f:l.v. thou.and.
Q That'. the .... valu. your wife te.tifi.4 to,
i. that dght?
A Ye..
Q 1fha t 1. you~ pr..ent gro.. incoae?
A Oh, 21,000, 21,000.
Q Wh.n you .epa~at.d fr~ your wif., you _r.
earning Gout US,OOO.OO?
A
Q
at that time ?
A
Q
A
Q
A
Q
A
Q
Around ther., dep.nding on overti_.
ADd .he had no inc~ or very little inaoae
8h. had .~ inaoae.
Wa. it .SO.OO a we.k?
Clo..r to 2S0.
Clo.er to lS0?
Two hundred and fifty.
What wa. .h. doing?
Rou..aleaning.
You were _king t_nty-fiv., _d you .ay _e
... _king about two fifty?
A Y.ah.
Q Th. .gr....nt ..t. forth that you _r. not
repr..ent.d by coun..l, i. that right?
A That'. right.
31
r\
o
Q aut it al.o .et. fo~th that you we~e a.ked to
.eou~. aD attorney?
A Y...
Q Aft.~ being a.ked to .ecu~e an attorney, you
deolined to get your own attorney, i. that ~ight?
A Right. I tru.te4 her attorney that w. do
have a fai~ cont~act.
Q 80, you believe that'. a fair cont~aot?
A Not the way you'~e reading it.
MR. BACBI I have notning further.
TIDI COUJl.T. M~. MoCaleb?
MR. MoCALRal No fu~ther que.tion., Your
lIoDo~.
TH_ COUJl.TI You..y .Up down. Thank you.
D. MoCALRa. Your Bonar, I would like the
oppo~tunity to oall Kathy Morrow to te.tify in thi. ..tte~.
Obviou.ly, we'r. going to ne.4 to have a oontinuaDo. in
order to do that. I gue.. I would requ..t a ClootinuaDce fo~
that lIurpo.. at thi. point.
TH_ COUJl.TI Mr. .aoh, Mr. McCaleb ha. a.k.d
to oall Attorney Morrow. Doe. you~ olient waive aoy
privileg. .he ..y have with re.lIeot to the attorney-olient
nlat1cm.hip?
(adef pau...)
.... BACH I Your Honor, Ka~en Neidig, ay
3:a
~
~
client, i. not inclined to w.iv. any attorn.y-olient
p~ivileg. at thi. time.
TR. COUJlT I All right.
D. MoCALRBI You~ Bono~, OeD I ~eque.t that
if we'~. going to have. continuance that w. h.v. tbe
oppo~tunity to b~i.f th.t i..ue? If I'm corr.ct in my
an.ly.i. that by filing . petition .b. h.. already waived
it, we don't ne.d anything furth.~ frOD! h.~ in order to
p~..ent the witn...' te.timony. On the othe~ hand, if it
turn. out th.t .h. ha. not y.t w.iv.d it and do.. need to
w.iv. it and ~efu.e. to waive it, th.n I .uppo.e the~e will
be no need for . fu~ther h..~ing if .h. continue. to ~.fu..
to waive it. But you h.d rai.ed . qu..tion b.fo~. about
legal autho~ity, and I'd like the opportunity to add~...
that i..u..
TRI cOUJlTI Ye.. Par the ~.oo~d, _ p~o1lably
.hould point out that the Court aet in oh.-b.~. with ooun..l
b.fo~. the h.aring to go ov.~ .~. of th... i..ue. that ....
to pr..ent th....lv.. frODl the fac. of the obj.ction.
Mr. Bach, do you hav. any obj.ction to a
continuanc. for th. pUl'po.. of pre..nting __I'anda aD the
i..u. of attorDey-olient privileg.?
MR. BACBI No, Your BonoI', _ would iDt.~o..
DO objeotion.
TBI COUJlTI All right. We'll enteS' tbi.
33
~
40
O:rd.~1
(Mbereupon, th. followi~g O~de~ wa. .nte:r.dl)
-AND HOW, thi. 12th day of Deo-.be:r, 1".,
UpOft con.id.:ration of the P.tition for Speoi.l .elief fil.d
in the above-o.ptioned matt.r, and following an .fternoon of
hearing, anel upon con.ieleration of the D.fandant'. IIIOtiOft
for a oontinuanc. to brief the i..ue of the .ttorney-olient
privilege with r..p.ct to the 'l.intiff'. rel.tion.hip with
bel' ooun..l, X.thy A. Morrow, R.quire, uel tb. ..id IIIOtiOft
for a continuanc. not b.ing obj.oted to by the ,l.intiff,
th. r.oorel .h.ll remain op.n for the purpo.. of con.idering
th. r.qu..t of D.f.nd.nt to call X.tby A. Morrow, ..qui~.,
a. bi. witn..., anel coun..l .1'. r.qu..t.el to furni.b bri.f.
CD the i..u. of tb. .ttorn.y-cli.nt privil.ge whiob b.. b.en
....rt.d by tb. Pl.intiff witbin on. aonth of tod.y'. d.t..
-.ollowing th. .~..ion of .uob bri.f.,
ooun.el are requ..ted to OOftt.ot the Court for the
.oh.duling of an addition.l prooe.ding.-
TlI COURT I It..y b. th.t in the interi.
oOWl..l will oont.ot .... Morrow, ud perhap. b.r t..ti-.ony
won't be n.o....ry. I'. not .ur.. I VU..., .otu.lly, Mr.
McC.leb, you o.n't contaot b.r unl... tb.re would b. AD
sgl'.-..nt hetw..n you anel Mr. ..ob.
a. IIclCALI.1 A. long .. th.re'. tbe open
i..u. of tb. .ttorney-oli.nt privilege, I .gr...
3f
~
v.
I
I
I
I
I
I
I
IN TBB COURT or COMMON PLBAS or
CUKBBRLAND COUNTY, PBNNSYLVANIA
CIVIL ACTION - LAW
IARIlN B. NeIDIG,
plaintiff
LARRY O. NeIDIG,
D.f.ndant
NO. 94-6054 CIVIL TeRM
IN RBI PLAIHTIFP'S PBTITIOH POR SPBCIAL RBLIIP
B.FORB OL!R. J.
OPINION .nd ORDeR OF COURT
Ol.r, J.
for dhpoeition in. thie divorce aotion ie a p.tition for
.p.cial relief filed by Plaintiff wife.
The petition ...k. a
deolaration that . cert.in property .ettlement and cu.tody
.gr....nt entered into by the p.rtie. when they .eparated .ntitl..
Plaintiff to one-half the value of the marital home, while impo.ing
upon D.f.nd.nt tot.l liability for a lien and mortgage upon th.
property.
A h.aring on the Petition we. held on Deoember 12, 1994, and
April 13, 1995.
For the re.lon. .tated in thi. Opinion, the
p.tition will be denied.
FINDINGS 9' FACT
1. The partie. were married on Augu.t 22, 1975.
2. The partie. own a home in which they re.ided during the
..X'riage at 1916 Fi.her Road, Meohania.burg, Cumberland County,
'enn.ylvani., a. tenant I by the entiretie..
3. The home ha. been apprai.ed at $85,000.
4. The partie. ..parated in March of 1992.
5. Inouabrance. on the home con.i.ted of a ~rtgag. in favor
of r.M.B.A. United Stat.. Oepart..nt of Aqrioultur. in th.
A
RO. 94-60S4 CIVIL TIRM
pdnoipal amount of about $43,000 and . lien in f.vor of DAPCU
.eauring . debt of $12,000.
6. Poll owing the parti..' ..par.tion, Plaintiff wife moved to
105 North St. John'. Road in Camp Bill, Cumberl.nd County,
P.nn.ylv.nia, and D.fend.nt hu.band remained .t the marital
reeidenoe.
7. The partie. executed a Pr\3perty Settlement and Cu.tody
Agr..ment on MAy 19, 1992.
8. Th. agre.ment wa. dr.fted by Pl.intiff'. .ttorney.
9. Among other term., the agreement contained the following
provision. I
Bu.b.nd agrees to pay and be .olely
li.ble for the oblig.tion due DAFCU (the home
equity loan .nd Choice/Vi.a con.olidation
lo.n) and for the mortgage on the marital
r..idenoe due .nd owing to r.M.B.A. U.S. D.pt.
of Agriculture.
'.. .
Th. partie. agree th.t the method for
det.rmining the value and distribution of th.
value of the house .h.ll be decided if .nd
wh.n a divoroe .ction ie filed by either
party.
10. The intention of the partie. with re.peot to the home and
enou.hrance. ther.on, .nd the me.ning of the word. of the
.gr....nt, wa. th.t pending a divorce D.fend.nt w.. to b.
re.pon.ible for making the monthly payment. on the d.bt.
encuabering the property where he re.ided, .nd that upon divoroe,
in the ab.enc. of .n .greement .t that time, the partie.' .quity in
2
..
NO. 94-6054 CIVIL TBRM
the home wa. to be di.tributed in acoordanoe with the prinoiple. of
equitable di.tribution under the Divoroe Code.
11. The pre.ent divorce aotion wa. cOllllll8noed by Plaintiff
wif. on October 20, 1994.
DISCUSSION
"The primary objective of contract interpretation i. to
a.o.rtain and effeotuate the intent of the pa:ctie. a. it i.
rea.onably manife.ted by the language of their written contraot."
O'Brien I'nergy Sy.tem., Inc. v. Americ.n Bmployer.' In.uranoe Co.,
427 Pa. Super. 456, 461, 629 A.2d 957, 960 (1993), appeal denied,
537 Pa. 633, 642 A.2d 487 (1994).
When interpreting a oontract, a oourt
mu.t determine the intent of the partie. and
effeot mu.t be given to all provi.ion. in the
contract. It i. firmly .ettled that th.
intent of the partie. to a written contract i.
contained in the writing it.elf. When the
word. of a contract are clear and unambiguou.,
the intent i. to be found only in the expre..
language of the agre.ment.... Where th.
oontraot term. are ambiguou. and .ulceptible
of more than one rea.onable interpretation,
however, the court i. free to reoeive
extrinlic evidenoe, i.e., parol .vidence, to
re.olvo the ambiguity.
Mriaoven.ky v. Xrjaoven.ky, 425 Pa. Super. 204, 211-12, 624 A.2d
638, 642 (citation. oaitted), appe.l denied, 536 Pa. 626, 637 A.2d
287 (1993).
.Where a oontract i. ambiguou., it i. undi.puted that the rule
(of contra proferentum) require. the language to be con.trued
again.t the drafter
"
Commonwealth, Depart_nt 01
... .
3
,.
10. 94-6054 CIVIL TeRM
1ran.portation v. Semandere., 109 Pa. Commw. 505, 511, 531 A.2d
815,818 (1987).
,
.A contract will be found to be ambiguou. if
. . .
it b
rea.onably or fairly .u.ceptible to differ.nt con.truotion., i.
capabl. of being under.tood in mar. ..n.e. than one, i. ob.cur. in
meaning through ind.finiten... of expre..ion, or ha. a double
meaning." Erje In.urance Co./I'rje In.uranae Exchang. v. Flood, _
Pa.
-'
___, 649 A.2d 736, 738 (1994).
.It i. well eltablished that in penn.ylvania, a ..ttlement
agreement between a hu.band and wife i. governed by the law of
contract. unle.. the agreement it.elf provide. otherwi.... Brower
v. Brower, 413 Pa. Super. 48, 56, 604 A.2d 726, 730 (1992). In
thi. r.gard, it ha. been .aid that, . [b]efor. a oourt will
interpret a provi.ion in [a marital agreem.nt] in .uch a way a. to
lead to an ab.urdity or make the contract ineffective to aocompli.h
it. purpo.e, it will endeavor to find an interpretation which will
effectuate the realonable result intend.d.. Laudig v. Laudig, 425
Pa. Super. 228, 234, 624 A.2d 651, 654 (1993).
.[A] grant of r.lief under a petition for .p.cial reli.f ba.ed
upon the interpretation of a marital .ettlement agr.e_nt 'is
within the .ound dilor.tion of the trial court ....'. delCa.tillo
v. delCa.tillo, 420 Pa. Super. 520, 524, 617 A.2d 26, 28-29 (1992),
quoting J.work v. J.work, 378 Pa. Sup.r. 89, 96, 548 A.2d 290, 293
(1988) .
4